A homeowners association, commonly abbreviated as “HOA,” is the governing body of a common interest community, such as an apartment or condominium complex, or other planned development community. The HOA is the private association that responsible for managing, and selling homes and lots in a planned subdivision.
As a homeowner you automatically become a member of the HOA, if there is one, when you purchase your home or lot. Further, within your real estate contract, there will be a section that notes that your purchase of the property that is part of a planned community, is a contract to both pay HOA fees and abide by their rules. Typically, HOA collects fees either monthly or annually from residents, and uses those fees for the upkeep of the community common areas, as well as other shared structures.
Additionally, HOAs have the power to enforce HOA rules, which are known as covenants, conditions, and restrictions (“CC&Rs”). For example, a common HOA condition would be to maintain the landscaping of your home by mowing your lawn, weeding, and keeping trees and bushes trimmed, etc..
If the homeowner is noncompliant with the HOA rules, then an HOA may fine them or take them to court. However, there are instances in which a homeowner is able to sue their HOA for failing to uphold their duties or obligations under the HOA governing documents. Thus, before suing an HOA you should analyze the governing documents and HOA rules, which you should have received when you purchased your home.
What are CC&Rs?
As noted above, CC&Rs stands for covenants, conditions, and restrictions, which are the rules established and enforced by HOAs that a homeowner agreed to follow when they purchased their home or lot. Examples of common covenants, conditions, and restrictions may include any of the following:
- How a homeowner must maintain their landscaping and failing to do so may result in penalties;
- The exterior appearance of a home or unit, such as what color the exterior is painted, what shutters or coverings are allowed, or where and how tall the fences are. Other exterior attachments or fixtures that may be regulated by an HOA include tire swings, satellite dishes, yard decor, or flags;
- Whether a homeowner may own a certain type, size, or number of pets; or
- What types of vehicles or how many vehicles a homeowner is allowed to park in the driveway or street. For example, many HOAs do not allow boats or RVs to be parked in the street or driveway.
As mentioned above, a homeowners’ failure to follow the CC&Rs may result in the HOA fining them, attaching a lien to their home, or even foreclosing on their property for failure to pay dues, fines, or follow the rules. Therefore, it is very important to make sure that you pay your HOA dues, in order to ensure that the HOA may not foreclose upon your property.
Should I Buy a House with Covenants, Conditions, and Restrictions?
Whether or not you should purchase a home or lot that is subject to CC&Rs is entirely dependent on your particular needs and wants, as well as what services or functions the HOA provides. For example, the pros for purchasing a home subject to HOA rules might include any of the following:
- Amenities: One major pro of an HOA is that they provide for amenities for the community, such as a community clubhouse, community pool, gym, waterpark, hiking trails, or other community amenities. One major reason that many people are attracted to planned neighborhoods is for the community activities and amenities.
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- Disputes: Another advantage of purchasing a home subject to an HOA agreement is that HOAs are responsible for handling disputes between homeowners. For example, if there is one homeowner that often holds loud parties at late hours or has a noisy animal that is affecting another homeowner, then the HOA will work to resolve that issue between the two homeowners.
- Maintenance: Another plus of purchasing a home subject to an HOA agreement is that the HOA has a duty to maintain the common areas of the community, as well as ensure that all homeowners are following the agreed upon rules.
- This means that often your property will remain attractive to future purchasers, ensuring that your ability to sell your home is not damaged by the appearance of other homeowners’ property in the community. Additionally, HOAs may offer services for homeowners such as mowing the lawn every two weeks.
However, there are also cons involved in purchasing a home that is subject to CC&Rs. As mentioned above, a homeowner must pay monthly or annual HOA dues, and failure to pay these dues can lead to a foreclosure of their home. Additionally, as a homeowner you must abide by all of the CC&Rs, which means that the HOA essentially gets to determine the appearance and use of your home.
Thus, whether or not you should purchase a home subject to CC&Rs depends on whether the services provided by the HOA outweigh the cons of the rules and restrictions placed on you by the HOA agreement.
What are HOAs Allowed and Not Allowed to Do?
Although it may seem like HOAs have an unbalanced amount of power and authority over homeowners, HOAs must adhere to all local and federal laws, as well as their own agreement. Local and federal laws were enacted to restrict HOAs in the amount of power and authority they have over homeowners. Examples of restrictions and rules placed on HOAs include, but are not limited to the following:
- Discrimination: Persons who are seeking to obtain a mortgage, rent or buy a home, seeking housing assistance, or engaging in other house-related activities are protected under the “Fair Housing Act.” HOAs must also abide by the Fair Housing Act, which means they are not allowed to deny housing in their community based on race, sex, disability, religion, national origin, familial status, or other federally protected characteristc.
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- Additionally failing to make reasonable accommodations such as installing ramps in common areas or housing may result in a violation of the Americans with Disabilities Act.
- Levy Excessive Fees and Collection of Fees: HOAs must operate within the legal bounds of their agreement and state laws; meaning HOAs are not allowed to levy fines against homeowners that were not agreed upon.
- Further, when HOAs attempt to collect fees that may not do so in violation of the Federal Fair Debt Collection Protections Act (“FDCPA”). The FDCPA is a federal law that restricts debt collectors as to what they can do when collecting debts, such as an HOA collecting fees.
In addition to the above mentioned restrictions, HOAs may also be further limited. For example, HOAs may also be restricted by state laws as to whether a homeowner is allowed to solar dry their laundry in their yard.
Additionally, HOAs are restricted from holding unfair elections, from denying homeowners plans that fit within the HOA agreement, or from amending the governing documents without due process. In order for a HOA to change the HOA rules that the homeowners agreed to, they must follow the procedures that are outlined in the CC&Rs.
Can I Sue My Homeowners Association?
Yes, homeowners are allowed to sue their homeowners association if they fail to perform their duties and obligations under the community governing documents, or if they violate local or federal laws. For example, if the HOA fails to maintain the common areas, then a homeowner may be able to sue them under a breach of contract theory.
Additionally, HOAs may be sued for misusing the fines that they collect from HOA fees. For example, if an HOA uses fees collected to purchase their members extravagant dinners or gifts, or otherwise spend the fees in a way that does not maintain or improve the community, then they will be subject to lawsuits by any homeowners that have paid their dues under a breach of fiduciary duty theory. Further, as noted above, a homeowner may sue their HOA based on a local state or federal law, such as the FDCPA.
Once again, it is important that you are aware of what the CC&Rs that are contained in the governing documents, so you know if the HOA has failed to perform their obligations under the agreement.
Do I Need an Attorney If I Need to File a Lawsuit Against a Homeowners Association?
As can be seen, there are many reasons why a homeowner may seek to sue their HOA. However, before initiating a lawsuit against your HOA it is important to research the governing documents of the HOA agreement in order to ensure that your claim is not frivolous.
Thus, it may be in your best interests to consult with a well qualified and knowledgeable real estate attorney in your area. An experienced real estate attorney will be able to evaluate your claim against the HOA, discuss your available remedies, file a lawsuit against the HOA, and represent you throughout the entire matter.
