What You Need to Know About Unenforceable HOA Rules

One of the benefits of living in a homeowners association (HOA) is that there are clear policies, procedures, rules, and expectations in place that everyone must follow. This helps to regulate undesirable behaviors, create consistency across the community, and maintain property value. But it can also be a source of member complaints if they feel the rules are unfair or selectively enforced.

It is important for board members to be well-versed in the HOA’s governing documents and understand proper procedures for creating, implementing, and enforcing rules. Partnering with an experienced HOA management company can provide boards with the guidance they need in developing regulations that are fair and legally permissible.

In this post, we will review some common guidelines for HOA rules and issues with enforceability. If you live in the Carolinas and have questions about HOA laws or regulations, feel free to contact Kuester Management Group. We proudly provide HOA management in Charlotte NC, Huntersville NC, Myrtle Beach SC, and HOA management in Fort Mill SC.

Who Has the Power to Make HOA Rules?

The HOA board of directors is given the authority to create covenants, conditions, restrictions, and rules for the association based on its governing documents. However, that does not give leadership absolute power. There are limitations on what the HOA can control and how it does so.

The board is tasked with making decisions that are in the best interest of the community and its members as a whole. Rules should not benefit of discriminate against one group over another, and they cannot contradict any local, state, or federal laws, or violate residents’ legal rights. There is a clear process outlined in the governing documents that the board must follow when making any additions, deletions, or changes to the rules.

What are General Guidelines for HOA Regulations?

Every HOA has its own standards and expectations, but they all follow the same general guidelines. The board should keep the following considerations in mind when devising rules:

Rules must comply with local, state, and federal laws

A key component of this is the federal Fair Housing Act, which prevents discrimination against members based on “race or color, religion, sex, national origin, familial status, or disability.” In addition, each state can pass its own laws that HOAs are required to follow. These laws supersede restrictions the HOA may put in place making the association’s rule unenforceable.

Rules should serve a clear purpose and not leave room for interpretation

The board should not be making policies for the mere sake of doing so. Each rule should be fair, reasonable, and have a specific purpose that promotes the betterment of the community. Language should be clear and concise so there is not the opportunity for multiple interpretations. For instance, terms like “annoyance” or “nuisance” are vague and ambiguous. What one person considers a nuisance, another may not, therefore leaving the board to decide, which may lead to legal concerns. Terms should be clearly defined.

Rules should be consistently enforced

All homeowners should be held to the same expectations. The board should ensure that community rules are effectively communicated and apply equally to every member. Generally speaking, one member should not be permitted to do something when another member receives a violation letter for that same act. This is considered selective enforcement, and it is illegal.

What are Some Common HOA Rules?

The board has discretion over many facets of HOA living. Many rules are intended to preserve the aesthetic appeal of the neighborhood and enhance property value. It is not unusual to see regulations around things such as:

• Fencing
• Landscaping
• Mailboxes
• Sheds or other structures
• Color palettes for siding, shutters, doors, or roofs
• Type of roofing material
• Storage of garbage cans and recycling bins.

Residents in North Carolina or South Carolina HOAs are likely to see these types of rules, and they are typically fairly straightforward.

What Makes a Rule Unenforceable?

However, the board must be careful when creating rules to ensure that they are not violating homeowner rights or contradicting existing laws. There are some common standards when it comes to what constitutes an unenforceable rule. Here are a few examples:

Rules that are not formally documented, approved, and communicated

The board must follow the process laid out in its governing documents in order to make any additions or amendments to the rules. This often involves discussing proposals with homeowners and putting the decision to a vote. If it does not pass, it may not be enforceable. In addition, the association must ensure that homeowners are informed about any changes and given ample time to comply.

Rules that inhibit freedom of speech

The Constitution protects freedom of speech. The HOA cannot prevent members from expressing their opinions or putting up political signs on their property, but it can put guidelines in place for when and where signs can be placed, as well as acceptable sizes for signage. The association may also create appropriate use policies for its social media pages.

Rules that violate the right to bear arms

This is another Constitutional right. The board cannot prohibit residents from owning firearms or storing them in their homes, but it can develop rules regarding the presence of firearms at community events or in communal areas.

Rules that infringe upon religious freedoms

Members are free to hold their own religious beliefs and practices. Rules that pertain to celebrating holidays and putting up décor cannot violate a homeowner’s rights. Instead, the board may focus on timing of when and how long decorations can remain in place, or restrictions around noise level or bright lights.

Rules against displaying the American Flag

Lawmakers passed the Freedom to Display the American Flag Act in 2005 giving homeowners the right to hang the American flag on their property. However, the HOA can put standards in place around the size, height, placement, and number of flags.

Rules about installing satellite dishes or solar panels

Many states have laws in place already about permitting this type of equipment. The HOA should refer to the FCC’s over-the-air reception device (OTARD) rules as well as state solar panel guidelines. Once again, the association typically cannot prevent this equipment, but it can have a say in size or where it is placed. Members may also need approval or permits before installing these devices.

Rules around landscaping

The homeowners association should review state laws regarding the types of trees and plants that are permitted to be regulated. Some states have protections in place around xeriscaping, synthetic grass, native plants, and more. Make sure that any HOA rules align with these requirements.

These are just a few examples of potentially unenforceable rules. HOAs should consult with a legal professional in their state for more specific guidance around regulations to ensure proposed or existing rules are compliant and enforceable.

How Should the HOA Board Handle Questions About Rules?

A lot of questions or complaints arise when homeowners don’t understand the rationale or reasoning behind certain rules. Once the board explains, it can clear up confusion and increase member adherence. Any concerns should be documented and addressed in a timely manner, even if that is just to say that the association received their inquiry and will respond by a specific date — and then be sure to follow up.

To reduce risk of potential legal action, the HOA should partner with its management company or attorney for guidance on creating rules that are fair, enforceable, and meet legal requirements. Laws are always changing, so the board needs to stay abreast of policies that affect homeowners associations, condominium associations, and their governing documents. It is a good idea to periodically review documents to make sure they are still up to date with current regulations.

How an HOA Management Company Can Help with Policies and Procedures

HOA management professionals are knowledgeable about the rules and regulations around association operations. They provide board members with resources, tools, and guidance when developing or amending rules, covenants, or restrictions in order to avoid potential legal issues.

A community manager can help ensure that proper procedures are followed and communicate decisions to members. They can also implement strategies to prevent selective enforcement and hold all members to the same expectations. Having clear and appropriate rules can enhance HOA effectiveness and reduce problems.

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