Which HOA Rules Can Be Enforced – and Which Can’t?
HOAs have some strict rules. Here’s when those can’t be enforced.
HOA complaints are common. They’re too expensive. They won’t let residents have free rein of paint colors. They limit what types of basketball goals you can put on your home, what sort of pets you can adopt and even the type of grass you can plant in your yard.
The fact is, though, homeowners associations are incredibly common. According to the Foundation for Community Association Research, 29% of Americans – or about 74 million – lived in communities governed by some sort of HOA in 2021.
And while, for the most part, just buying a home in these neighborhoods means you must comply with the HOA’s rules, there are some exceptions.
Read on to find out when an HOA rule can be enforced, when it can’t and what to do if you suspect a rule isn’t enforceable in your community.
Can HOA rules really be enforced?
Simply purchasing a home in an HOA-governed community typically means you have to abide by the rules – often called restrictive covenants or covenants, conditions and restrictions (or CC&Rs).
“When someone purchases a home in a subdivision that is governed by CC&Rs, they are bound by the existing CC&Rs,” says Chris Gooch, a real estate attorney at Fennemore Craig in Phoenix. “In the last several decades, it has been common for the CC&Rs to establish external qualities for the homes in a given community, such as the allowable paint colors, plant types, wall heights and even roof treatments.”
If you fail to comply with an HOA rule, you’ll typically get a letter in the mail asking you to remedy whatever the violation was. If it continues, it could get costly.
“Typically, monetary penalties are handed out so that an infringing HOA member would be charged X amount per day while in noncompliance,” says Christa Kenin, an attorney and real estate agent with Douglas Elliman in New Canaan, Connecticut. “Harsher penalties could include restricted access to HOA amenities such as a golf course, swimming pool or parking area.”
Still, not all HOA rules are legally enforceable. For an HOA rule to stand, it must meet the following four standards.
1. It must comply with all state and federal laws.
HOA rules can’t go against any state or federal laws. This includes laws that specifically pertain to HOAs and any other applicable laws.
Take the nation’s Fair Housing Act, for example. This prohibits discrimination when a person is looking to buy or rent a home, protecting groups who would otherwise face higher prices, lower valuations or even outright denial of housing.
“Any HOA rule that violates either state or federal laws, including Fair Housing laws, would be unenforceable,” says Adie Kriegstein, a real estate agent with Compass in New York. “For example, an HOA rule that restricts homeowners based on their race, religion or national origin would be considered discriminatory and illegal.”
New York’s Roommate Law – which entitles most tenants to a roommate who’s not on the lease – is another good example of something an HOA could not go up against.
“Even though a co-op proprietary lease says that a residence can only be occupied by one family, the New York Roommate Law says that where a residential lease has one tenant of record, he or she is permitted to have a roommate and the roommate’s entire immediate family occupy the apartment with them,” says Ian Brandt, a real estate attorney and partner at Davidoff Hutcher & Citron LLP in New York.
2. It must be adopted per the HOA’s governing documents.
HOA rules also have to be passed according to the group’s governing documents, called bylaws.
“The rule must have been properly adopted according to the procedures set forth in the HOA’s governing documents, including notice and opportunity for homeowner input,” Kriegstein says.
Any penalties or enforcement mechanisms must be in adherence with the HOA’s bylaws, too.
As Kriegstein explains, “In order to enforce an HOA rule, the association must have the authority to do so, as outlined in its governing documents. This may include the ability to impose fines or penalties for noncompliance or to take legal action against homeowners who refuse to comply.”
3. It must be reasonable.
HOAs can’t ask just anything of their community members. To be enforceable, rules can’t be “arbitrary” or “unrealistic,” Kriegstein says.
“Rules must be reasonable,” says Matt Zifrony, an HOA attorney at Tripp Scott in Fort Lauderdale, Florida, and the longtime president of his neighborhood’s HOA board. “That’s subjective, but there is a requirement that all rules must be reasonable in order for them to be enforced.”
A good example would be if an HOA told residents they (nor their guests) couldn’t use the community’s guest parking spaces.
“If they suddenly say that nobody can use the guest spaces – guests can’t use them, owners can’t use them, one can probably say that’s unreasonable,” Zifrony says. “There’s a reason they’re called ‘guest spaces’ so that guests can park their cars there. It’s unreasonable for you to say no one can park there.”
4. It must be enforced consistently.
Finally, HOA rules need to be enforced across the board – with every homeowner being held to the same standards consistently and fairly.
“They have to be enforced equally against everybody,” Zifrony says. “So the board can’t target my friend because his son parks his car in the guest space and not any other cars that are improperly parked in the space.”
In short, Kriegstein says, the rules must be enforced “without discrimination or favoritism.”
What to do if you’re unsure about an HOA rule
If you think your HOA may have some unreasonable, inconsistent or otherwise unenforceable rules, you have options. First, go to an HOA board meeting and voice your concerns. According to Zifrony, coming to the table with a replacement rule or another remedy will likely get the best response.
“When people come to my meetings, I tend to give a lot more deference to the person that comes with the problem and a solution,” Zifrony says. “So if it were me, I’d go to the board meeting, and I would politely explain why I think it’s wrong. I’d say, ‘Look, this rule is really crazy, but let me tell you, I think I know what you’re trying to do. Doesn’t it make more sense to change the rule to blank instead?’ That gives the board something to think about.”
You can also work with your neighbors to vote out problematic HOA board members, or you could become a board member yourself. This would give you voting power to change the rules in the future.
Finally, you can also take legal action, though this could be costly and time-consuming.
“Taking your HOA to court takes money, which is why so few HOA rules get challenged,” Brandt says. “A tenant who wishes to pursue this course of action needs to make sure they are aware of the local laws as the statute of limitations can be quite short. In New York, a challenge to a co-op or condo rule must often happen within four months of the board adopting the rule.”
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