FAQs About Disputes With Condo or Homeowner Association

Can the HOA make me do that (or not do that)?!

Before assuming your disagreement or dispute with your condo, community, or homeowners' association (HOA) is unique or insoluble, check out whether others have faced a similar issue.

I live in a townhome and want to turn my yard into a rock garden. The HOA is telling me I can’t. Can it really stop me?

Answer

Actually, you might not even own your yard. Your HOA's governing documents, along with the maps and plats of the property, will likely designate certain portions as common areas, which are owned by all townhome owners jointly.

In a townhome development, the yard surrounding the townhome might be a common area, or more likely, a limited common area. Limited common areas are for the benefit of fewer than all the owners. For example, your yard might be a limited common area for the benefit of all owners of your townhome (rather than all owners in the development). But then you'll need to look at what your development’s governing documents say about use of common areas and limited common areas. The Covenants, Conditions, & Restrictions (CC&Rs), for example, might prohibit any owner from altering a limited common area.

Even if your yard is not a common area, and you own it outright, the governing documents might prohibit rock gardens. To ensure uniformity and maintain standards, you might find a wide variety of landscaping rules and regulations, regarding everything from how often you must cut your grass to what you can plant.

What if the rule is one you didn’t know about, or didn’t exist when you bought your townhome? In short, “Tough luck!” By buying a home in a planned development, you've agreed to the terms of all its governing documents whether you’ve read them or not, as well as to any amendments. (One exception might be an amendment that “grandfathered” in existing owners.)

Ask your HOA what rule or regulation it's relying on in restricting your rock garden. If you disagree with the interpretation, request a meeting. Bring a copy of the restriction and a design of your plans, then carefully explain why your use should be allowed.

If the rule leaves no room for interpretation, and the rock garden is important to you, consider trying to amend the rule. The document containing the rule will probably set forth the procedures necessary for amendment. Sometimes, rules and regulations that are not in the CC&Rs can be amended with the vote of all the members of the HOA's board of directors. If you can get the HOA on your side, this might not be too difficult.

If amending the rule requires a vote of all owners in the development, getting an amendment passed is likely to be more difficult. Whether the time and effort (and possibly expense) are worth it is up to you.

Question: Can my HOA prevent me from fixing my car in my driveway?

My HOA is telling me I can’t fix my car in my driveway. But I own that portion of the property!

Answer

Welcome to the world of planned developments! Their rules and regulations typically govern aesthetic matters, for example by prohibiting trash left around yards, or by requiring regular lawn mowing. When you purchased there, you agreed to abide by these.

Thus if the rules prohibit car repairs on the property, the HOA is within its rights to enforce this against you. Violating the rule could subject you to fines, prohibition on using the development’s common areas, or a lawsuit by the HOA.

Ask the HOA to provide you with a copy of the rule or regulation it’s relying on. If there's a clear prohibition on fixing cars in one's driveway, you are essentially out of luck.

If the HOA can point to no relevant rule, or if you disagree with the HOA’s interpretation , discuss the matter (civilly) with the HOA. It might back down. If it's relying on a general rule (such as one prohibiting owners from creating nuisances upon their properties), do your best to convince the board that this does not apply to your use. Try assuring it you will complete the repair quickly and keep the worksite tidy.

If that doesn't work, you might also attempt to amend or revoke the rule. However, this might be a long and difficult process. An experienced attorney in your area can assist you in determining what procedures are required and assessing the potential for success. If you really believe the HOA is out of line, and don’t mind incurring expenses, you might pursue legal action.

There’s a community clubhouse where I live and the HOA is telling me I can’t have a party there. I’m planning a big birthday bash, to which I will invite friends from both within our community and elsewhere. Since I own a part of the clubhouse, shouldn’t I be able to use it whenever I want?

Answer

The clubhouse is most likely one of the development’s common areas, owned by all property owners jointly. Although you share ownership, this doesn't mean you have free rein to use it whenever and however you want.

When you purchased your home, you agreed to abide by the terms of the development’s governing documents. Use of the clubhouse was no doubt covered within these. For instance, the CC&Rs might prohibit owners from holding private parties in a common area (or specifically in the clubhouse) at any time. Or, the Rules and Regulations might specify procedures an owner must follow (such as making a reservation or paying a fee) before giving a party.

In any case, it's worth asking your HOA what rule or regulation it’s relying in prohibiting your use. In certain situations, the CC&Rs might give the HOA the right to prevent an owner’s use of the common areas altogether. For example, an owner who is delinquent in paying dues and assessments might be restricted from use of common areas until paid up. In such a situation, you might be able to have your party after catching up on all overdue HOA payments.

Also, governing documents sometimes provide that a certain use (such as a private party) is up to the discretion of the HOA board of directors. If so, you may want to try convincing the board to approve your use. Request a meeting and provide any assurances the board might request.

If a rule in your development’s governing documents prohibits private parties outright, consider trying to revoke or revise this. Keep in mind, however, that amending governing documents usually requires time, patience, and financial outlay. If you plan on living in the community for a long time and have your heart set on future parties, however, you might decide it's worth it.

Question: Can my HOA legally prohibit my grandson from using the pool?

My grandson comes to visit me every summer. He loves to swim at the pool in my subdivision, along with the many children who live here. But the homeowners’ association recently placed an “Adult-Use Only” sign at the pool. It sounds like the rule was adopted because the HOA board was concerned that a child would get hurt at the pool. Is it legal to prohibit my grandson from using the pool?

Answer

The law that most closely addresses your situation is the federal law Fair Housing Act (“FHA”), which prohibits housing discrimination. Although the FHA is often thought of as protecting buyers and tenants from discrimination as they try to obtain housing, the law also protects existing homeowners and tenants from discrimination by an HOA.

The FHA makes it illegal for HOAs to discriminate based on “familial status.” What this means is that, in the course of providing facilities in connection with housing, such as a pool, HOAs cannot discriminate against:

  • children under the age of 18 who are living with their parents or legal custodians
  • pregnant women, or
  • people seeking to secure custody of children under eighteen.

Adopting a rule that prohibits all children under the age of 18 from using the pool could be viewed as discrimination. Exceptions might apply, though. One might be that the “Adult-Use Only” rule is the “least restrictive means to meet a compelling business necessity.”

For example, an HOA board might determine that to avoid an injury to a child (and any resulting lawsuit), a rule prohibiting pool use by all minors may be "necessary." However, that will not be the “least restrictive means” of avoiding an injury and lawsuit, if the same result can be achieved, for instance, by requiring adult supervision. If the rule is not the least restrictive means, the exception will not apply, and the rule is likely unlawful.

As to you and your grandson, the HOA's conduct isn’t necessarily unlawful under the FHA given the fact that you don’t have legal custody of him; he is only visiting. You might be best served by working with some of the parents in your community to address this issue at the next HOA board meeting.

Also look into whether your state provides additional protections under its own housing discrimination law. And carefully review your HOA’s governing documents, including its Declaration of Covenants, Conditions and Restrictions (also known as CC&Rs) and bylaws. These may limit your HOA board’s ability to impose an “Adult-Use Only” pool rule.

Talk to a Lawyer

Need a lawyer? Start here.

How it Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you
NEED PROFESSIONAL HELP ?

Talk to a Real Estate attorney.

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you