Association boards are responsible for proper and fair HOA enforcement. With so many moving parts, especially in larger communities, it is easy to let things fall through the cracks. But this can expose the association to liability risks, resulting in long-term reputational damage and financial strain. Understanding how enforcement should work is the key to limiting issues.
What is HOA Enforcement?
Homeowners association enforcement the process by which an HOA makes sure residents follow the covenants and rules. Enforcement adheres to a strict procedure, with requirements depending on state laws and the governing documents.
What are HOA Covenants?
In an HOA, covenants are the rules that govern how a community operates and how owners can use their properties. Boards and owners can find these covenants in the CC&Rs, otherwise known as the Declaration of Covenants, Conditions, and Restrictions.
It is worth noting that covenants are legally binding. When someone buys a home in the community, they automatically agree to follow these covenants.
While exact covenants can vary depending on the association, they typically cover the following:
- Architectural standards and exterior changes
- Landscaping and property upkeep
- Parking rules and vehicle restrictions
- Noise limits and nuisance behavior
- Use restrictions, such as rentals or home businesses
Some owners may find covenants too restrictive or limiting, but they do serve an integral purpose. These covenants help associations reduce neighbor conflicts, maintain curb appeal, and preserve property values.
Gaps in HOA Covenant Enforcement
The HOA board is responsible for enforcing the rules, but the task isn’t always as straightforward as it seems. Mistakes are bound to happen, but some of them are more detrimental than others. Understanding what mistakes to watch out for is the first step in avoiding them.
Here are the most common gaps boards must be wary of when it comes to covenant enforcement.
1. Laches
Laches is a legal doctrine that prevents someone from enforcing a right if they waited too long to act, and that delay caused harm to the other party. In simpler terms, it means that if an HOA sits on its rights and does nothing for too long, it may lose the ability to enforce them.
2. Self-Help Remedies
A self-help remedy is when an HOA takes direct action to fix a violation itself, instead of going through the proper channels first. The board doesn’t send notices or fine an owner. It immediately steps in and corrects the issue, then charges the owner for the cost.
Association boards should be wary of using self-help. Most of the time, state laws don’t give HOAs the authority to exercise this remedy. Board members should check their governing documents for guidance as well. If a board uses self-help without being authorized to do so, it can face legal exposure.
3. HOA Selective Enforcement
Association boards have an obligation to enforce the rules in a fair and consistent manner. If the board enforces a rule for one owner but not another, that’s considered selective enforcement. If the board enforces one rule but not other rules, that’s also considered selective enforcement.
When the board enforces the rules unevenly, it can render the rules unenforceable altogether. It can call the board’s credibility and integrity into question, too. Beyond that, owners can take legal action as a way to recover damages.
4. Estoppel
Estoppel is a legal principle that prevents someone from going back on what they said or previously allowed, if another person relied on that and would be harmed by a sudden change. In an HOA setting, if the board previously approved an owner to do something, it may not be able to reverse course later on.
5. Unenforceable HOA Rules
Associations must enforce only the legal rules they have the power to enforce. When a rule is unenforceable, and the HOA attempts to enforce it anyway, it can expose the association to legal risks.
What makes a rule unenforceable?
- Enacted Improperly. Boards must follow proper procedures and requirements when enacting a new rule or changing an existing one. For example, amendments to the CC&Rs often require membership approval. Skipping this vote and going straight to a board resolution can render the change invalid.
- Lack of Authority. If the board doesn’t have the power to enforce a rule, doing so anyway isn’t allowed. State laws and the governing documents grant enforcement authority.
- Unlawful. Rules must align with federal, state, and local laws. For example, an HOA can’t prohibit owners from flying the American flag altogether, as this conflicts with the Freedom to Display the American Flag Act of 2005.
How to Ensure Proper HOA Enforcement
Board members must adhere to state laws and their governing documents when enforcing HOA rules. While exact requirements can vary, there are some general guidelines that community leaders can follow.
Here are the steps and strategies for proper HOA enforcement.
1. Follow Notice Requirements
Before taking any enforcement action, HOA boards must provide the owner with a notice of the violation. Sometimes, a two-step violation process is necessary, issuing a warning first before a formal letter. Notice requirements will depend on state laws and the association’s CC&Rs or bylaws.
2. Provide an Opportunity to be Heard
Many states require associations to give owners an opportunity to be heard before issuing a penalty. This disciplinary hearing allows the accused to defend themselves before the board, presenting evidence and witness statements.
3. Make Sure Fines are Enforceable and Reasonable
Not all associations have the authority to impose fines. Board members should check their state laws and governing documents to confirm that they have this power.
Moreover, fines must be reasonable. Homeowners can challenge the penalty if the fine is too large or inappropriate for the violation. For example, a $500 fine would be unreasonable for a minor offense.
4. Suspend Privileges the Right Way
As with fines, not all associations can temporarily revoke an owner’s privileges as punishment. It depends on state laws and the governing documents.
Furthermore, what counts as a “privilege” can vary from one community to another. Generally, it covers access to amenities and association events. In some cases, it can extend to voting rights.
5. Consider Legal Action Carefully
Depending on the situation, the association can take the matter to court. The court will then either rule in favor of the association or the owner. If the HOA wins, the court will usually issue a judgment or force compliance.
Legal action should come as a last resort for HOA boards. Lawsuits can take months, even years, to resolve. They also cost a lot of money, and the HOA can rack up insurmountable attorneys’ fees as a result.
For a quicker and more affordable alternative, boards should consider mediation or arbitration. These options enlist the help of a neutral third party to resolve the dispute.
Frequently Asked Questions
Can I sue my HOA for selective enforcement?
Yes, a homeowner can sue an HOA for selective enforcement. These cases usually claim that the board enforced rules unevenly or unfairly.
Of course, there’s no guarantee that the owner will win the case. As previously explained, lawsuits can be lengthy and costly. If insurance doesn’t cover everything, the HOA will be forced to raise dues or levy special assessments to pay for legal fees and damages, which the owner will have to share anyway.
Can you sue the HOA for not enforcing rules?
Yes, homeowners can sue an HOA for failing to enforce its rules, but these cases are difficult to win. Boards usually have discretion in enforcing the rules, with courts deferring to the board’s judgment if it acts reasonably and in good faith.
That said, with an HOA not enforcing rules, an owner’s claim may win if the board completely ignores violations, causes harm due to the lack of enforcement, or breaches its fiduciary duties.
Can police enforce rules?
In general, the police can’t enforce an association’s rules. That is the board’s job. That said, if the violation also involves illegal activity, the board can contact the local authorities.
A Helping Hand
It is not always easy to navigate HOA enforcement, especially when there are too many gaps to take note of. This is where professional help comes in handy. An HOA management company can ensure compliance with legal standards when enforcing the rules.
HOA Explore makes it easy for associations to find HOA management companies. Use our online directory today!
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