Can My HOA Do that?
A homeowner association must act in conformity with its governing documents -- but even then its actions may not be legal.
Disputes
between property owners and their homeowners’ association (HOA) are all
too common and they can just as frequently make mountains out of mole
hills.
To
borrow a real-life example: a property owner neglected to obtain
permission to build a structure over his wellhead before he actually
built it. The as-built structure was professionally-designed,
elegant and even used the same native stone as was used on the owner’s
home itself. Unfortunately, the new building was also four inches
larger than the restrictive covenants governing the association
allowed. Despite the owner’s numerous attempts to obtain the
association’s permission retroactively, the association stood firm and
ultimately required the owner to tear down the new structure even though
it otherwise would have authorized it but for the size
differential. (As you can guess, this dispute was more about
personality than compliance with the covenants – a not unusual aspect of
many covenant enforcement disputes between HOAs and their members.)
Generally speaking, HOAs interact
with property owners in three principal ways: (1) collecting
assessments for maintenance of the subdivision's common areas; (2)
enforcing restrictions in the community against certain potentially
objectionable uses of property such as allowing weeds to grow or parking
inoperable vehicles, etc.; and (3) enacting rules and regulations that
clarify or supplement the covenants to address unanticipated situations.
In any of these three areas, a
property owner may well wonder whether the HOA has the legal authority
to take the action it is taking?
In answering this question, the
starting point is invariably to read all of the governing documents of
the HOA to determine if the issue at hand has been addressed in
them. Those documents, in order of comparative strength,
are: (1) the subdivision’s Declaration (also called the “Covenants,” “Restrictions,” or perhaps the “Restrictive Covenants”); (2) the association’s Articles of Incorporation, (3) the Association’s Bylaws,
and (4) any “rules and regulations” lawfully adopted by the
association’s board of directors or membership. It is important to
check that you are consulting the most recent versions of these
documents as they may have been amended or entirely ”restated” from time
to time.
But even if these documents appear to
grant the HOA the authority to undertake the challenged action, the
action being taken may still not be legal on account of a state statute
or judicial opinion (“precedent”) that limits the HOA’s authority to act
regardless of what the documents say, and so these sources need to be
reviewed as well.
(1) Assessments
For example, an association’s
process for collecting assessments is subject to detailed procedural
requirements set out in North Carolina’s General Statutes; if the HOA
does not follow these procedures, either the assessment itself or its
collection effort may be invalid. In general, HOAs must budget for
assessments, give notice to the property owners or the budget, and
conduct a vote on the budget and proposed assessments.
There are even greater procedural
requirements for fine assessments where the HOA tries to collect money
for behavior it believes is improper on the part of a property
owner. Those procedures include providing notice to the owner of
the alleged wrongdoing, and giving that owner the opportunity for a
hearing at which the owner can present evidence and arguments why she
should not be fined.
(2) Enforcement of Use Restrictions
A second area in which associations typically interact with owners is in the enforcement of “use” restrictions found in the Declaration such
as limiting improvements on the property to single-family residential
structures, prohibiting nuisances, imposing architectural and
landscaping requirements, and so on. In enforcement actions, the
essential dispute between the parties is most often over whether the
challenged restriction is the type of restriction that can be imposed in
the first place, and whether, even if it is theoretically valid, it is
written clearly enough to be understandable.
The details in use restrictions can
become quite specific, such as whether window treatments inside a home,
but visible from the outside, meet certain requirements. Again,
certain types of restrictions – although sounding valid enough – are
governed by statutes that effectively nullify the covenants if they
contradict the statute. For example, restrictions regarding
satellite dishes, solar panels, displaying patriotic flags, and
political signs are all subject to state statutes or federal
regulations.
Typically, at the heart of these
disputes is whether the restriction is impermissibly ambiguous so as to
leave compliance by an owner too difficult to ascertain. The
general rule is that a court will enforce a given restriction so long as
it is not ambiguous, and that where the court determines that the
restriction is ambiguous, the court is then duty bound to resolve the
dispute by imposing the less restrictive use of the property and
nullifying the challenged restriction. For this reason, lawyers
draft restrictions using very detailed language in an attempt to avoid
ambiguity – and this practice leads to lengthy restrictive documents.
(3) Enforcing Rules and Regulations
Finally, most HOAs are empowered to enact rules and regulations that help to clarify or carry out mandates contained in the Declaration or Bylaws.
Such “rules and regs” frequently include placing limits on the hours of
use for given amenities, imposing fees for the use of those amenities,
or otherwise regulating what activities can occur in the common areas.
The Board’s power to enact such
rules and regulations is not absolute. Rather, the law requires
that any such rules and regulations be “reasonable” and that they
otherwise do not conflict with the other documents governing the
subdivision. For example, if the Declaration sets a
numeric limit on the number of owners who may rent their properties at
any one time, and requires a vote of the members to change that number,
then the HOA’s board of directors cannot circumvent that requirement
simply by enacting a “rule.” Courts have held that the
following “rules and regs” were “reasonable” under the specific
circumstances of the cases before them: prohibiting alcoholic
beverages in a clubhouse; allowing the towing of unlicensed cars; and
banning dog leashes in excess of 20 feet.
To conclude, this article intends
to present a very broad overview of the primary actions in which HOAs
act, and the legal limits on those actions. What may be valid or
“reasonable” in a specific situation will turn on the precise language
used in the various documents governing the subdivision, and an in-depth
analysis of that language in the context of “precedents” set by North
Carolina courts in similar cases.
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