Homeowners love living in HOAs because HOAs are well-known to protect property values while providing a strong sense community. While on the surface HOA rules and regulations seem to exist for no reason, in truth, an HOA’s governing documents are the primary mechanism for keeping property values high and maintaining the sense of community many HOA members love. Both of these factors work together to keep the HOA competitive in the real estate marketplace.
How does an HOA’s governing documents and its governing bodies keep an HOA competitive in the marketplace? They do so by providing safety and structure to the community through regulation.
The powers of the governing documents and its governing bodies are sweeping; but if for some reason you find yourself questioning whether your HOA has the authority to regulate a certain item or action, we encourage you to check your association’s governing documents. If the governing documents don’t shed clarity on the issue in question, we encourage you to review your state and local laws to see if they speak to the item in question.
While reviewing your governing documents and its governing bodies regularly will help ensure they are clear and coherent – and therefore will help your HOA avoid misunderstandings and disputes – it is just as important to understand these documents: what function they perform for the community and what rules and regulation you may typically see in them.
The Declaration of Covenants, Conditions and Restrictions (CC&Rs) dictate the rules and restrictions owners must follow in all homeowners associations (HOAs), property owners associations (POAs), and community associations. The CC&Rs give the HOA the power to act. The rules contained within the CC&Rs run with the land, meaning that the property restrictions are in place no matter who owns the property.
What do the CC&Rs govern?
The CC&Rs include specific guidelines for items like yard maintenance, basketball hoops, noise, pets, parking, vehicle storage, and general nuisances.
The CC&Rs also list the association’s requirements for assessments. These requirements give the association the right to charge dues to each of its members. It also lists the consequences for non-payment.
How can your HOA enforce the CC&Rs?
Broadly speaking, the HOA enforces these rules through their HOA management company. More specifically, the CC&Rs give the board and, by extension, the management company the authority to enforce the rules via fines, fees, and even foreclosure.
Ensuring the rules are properly enforced is vital, as they ensure that the association is always maintained and well-kept by your HOA management company or Board of Directors.
Do homeowners have to follow the CC&Rs’ rules?
Yes: when a homeowner purchases a home in an HOA, they must sign documents that state that they have been told that the property they are purchasing has rules and restrictions. We strongly encourage everyone looking to purchase a home read through the CC&Rs and be aware of all of the rules of the neighborhood before purchasing a house inside a HOA.
The Role Of Site Drives And Home Improvements
The CC&Rs chief role in the maintenance of the community is to maintain the standards and rules by which homeowners are expected to maintain their homes. There are a variety of mechanisms by which the CC&Rs accomplish this; usually it is through mandating the use of site drives to ascertain compliance. Another common way is by mandating that all home improvements a homeowner wishes to make first go through the community’s ACC/ARC.
If you are wanting to make an improvement to the outside of your home, you will need to seek approval from your community’s ACC/ARC. The Architectural Control Committee (ACC), relies heavily on the community’s CC&Rs when making their decisions. Sometimes called the Architectural Review Committee (ARC), this committee is responsible for ensuring that any changes to the exterior of an association’s homes conform to the standards set by the governing documents. The ACC is an HOA’s most important committee, and it is established along with an HOA.
How do the ACC members make their decisions?
The ACC members rely on the CC&Rs and other governing documents to make their judgements. Their primary purpose when reviewing a requested modification against the governing documents is to ensure that no exterior modifications will be approved that will negatively impact the appearance of the community.
In other words, if a community member wishes to paint their house, your CC&Rs likely have a provision that gives the Board of Directors via the ACC control over such an action. It is the ACC who will approve or deny the structural improvement.
In self-managed communities, the ACC (typically made up of board members) works alone to manage the community’s ACC requests. If your community employs a management company, your HOA management company’s responsibilities will likely include assisting your community with ACC requests. HOA management companies usually assist by providing an easy way for owners to submit their requests, review submissions and automatically reject those that are incomplete, and provide recommendations to the ACC.
What if a homeowner makes an improvement that wasn’t approved by the ACC?
If an owner makes alterations to their home without ACC approval, the board will take appropriate action to follow up, and a hearing may be conducted. Depending on the outcome of the hearing, an owner may be asked to reverse their changes. While such edicts may seem harsh, these kinds of regulatory procedures help preserve order in the community while still providing freedom and an avenue for reasonable modifications to be made.
The primary purpose of the ACC is much the same as the CC&Rs: to provide a stable, uniform influence on the association as whole. As board members (and even HOA management companies) change over the years, it’s vital to have a set standard for all residents to maintain.
While the community’s ACC/ARC is the governing body most homeowners are likely to interact with on a regular basis, there is another, more powerful body at work in an HOA’s governance: the Board of Directors.
The Powers of the Board of Directors
The board’s powers are far reaching and substantial. However, the board should never go further than the CC&Rs allow. When it comes to the appearance of the neighborhood, their powers are nearly limitless, because they have the ability to draft and work toward amending the CC&Rs.
Below are some of the areas the Board is able to exercise authority on using the CC&Rs:
Many of the rules outlined in the CC&Rs have to do with lawn maintenance. The CC&Rs list general rules for the maintenance of community members’ lawns, including:
- Weed removal
- Removal of dead trees and plants
- Replacing dead grass
If you live in a gated community, your association owns the streets. Therefore, it is both the HOA’s right and responsibility to enact and properly enforce certain rules. (This is why many HOAs are able to dictate where you can and cannot park.)
Specific guidelines about what types of vehicles can be stored on the property are also often addressed in the CC&Rs. Many of the following recreational vehicles can lower property values over time if parked in the driveway:
- Broken down vehicles
- Other recreational vehicles
Other rules may have to do with the care, noise level, and overall maintenance of pets. The CC&Rs normally list which types of domestic animals a homeowner can have, and how many (generally two dogs and two cats) can be kept on a lot.
When it comes to the maintenance of pets, most CC&Rs mention that animals must be confined to the owner’s lot or on a leash at all times.
The above examples are just some of the rules you may encounter when living in an HOA. When it comes to changing the exterior of a home within the community, there can be even more. Typically, there is nothing in the exterior of a community’s home that is not subject to the CC&Rs.
While critics of HOAs dislike that owners must gain approval in order to do almost everything, including painting the outside of their own property, control over the outside appearance of homes within a community is actually one of the greatest powers an HOA has to protect the community’s home values.
Generally speaking, most people find that the benefit of living in an HOA far exceeds the negative aspects. For example, living in an HOA means a homeowner never has come home from work one day and see that their neighbor’s home has gone from a sandy color to a bright green one. Such a change could affect you and your community’s property values, especially if other individuals in the neighborhood decided to follow suit and begin painting their homes bright, non-neutral colors.
Living in a HOA provides homeowners protection in these types of situations.
Homeowners who want to change their home’s outside appearance, like the color of their home, must first review the community’s CC&Rs to see what paint colors are approved, then submit an improvement request to have their change approved by the ACC before proceeding.
If your homeowners have reviewed their CC&Rs and still have questions, you can encourage them to get in contact with your community manager and ask them what steps you need to take in order to get your paint proposal approved.
If you are in a self-managed community, then you can encourage your homeowners to get in contact with a board or ACC member to get their questions answered.
Can Your HOA Access Your Property?
While many people view their HOA in a positive light and love that they protect property values, most agree that the HOA’s power should have limits. Just how far is an association permitted to go in the name of regulation? Can an HOA enter your property, for example?
What rights an HOA has is always going to be found in your association’s governing documents.
So, if you’re wondering whether your HOA has access to a homeowner’s property, we recommend checking your homeowners association’s agreement or bylaws. Within those legal documents, the homeowner should be able to determine what rights are granted to the association explicitly.
When trying to decide if the HOA has the right to enter your property, pay careful attention to the wording. The bylaws may state that the property owner’s presence within the neighborhood gives implicit consent for the homeowners association to come onto the property, whether the owner is home or not, for the purpose of inspection or complaint investigation.
In the event the association initiates communication regarding an inspection and the homeowner denies access, the implicit consent clause above lets the association onto the property whether the homeowner consents or not. That being said, they cannot force themselves through the front door against the owner’s will; they would only be able to inspect the exterior of the property. (If the homeowners association has a copy of the key to the home, they can enter the home as they see fit.)
Another example in which your HOA may enter a homeowner’s property is if a tenet of the association agreement has been violated. Perhaps the owner has broken a rule regarding outside decor or lawn ornamentation. If the owner fails to respond to citations by the association, he or she may be subject to fines or an unwanted visit from the homeowners association. While the association cannot harass the property owner, they can enforce the rules of the association’s code.
In addition to being able to monitor the homes of a community, the Board of Directors also has control (via the CC&Rs) of any physical property controlled directly by the HOA, typically called the association’s common areas.
An association’s common areas typically consist of any stairwells, hallways, laundry rooms, lobbies, basement and roof areas, courtyards, pathways, lawns, and any areas with community amenities, such as fitness centers, pools, and sport courts. These areas are some of the most important for any HOA, as they are where your association members will spend time in and share together.
That’s why it’s necessary that the board keep the association’s common areas maintained within the limits outlined by the CC&Rs. These areas fall under an HOA’s jurisdiction and are subject to specific rules and procedures.
These rules are typically met with more sympathy and support than rules that govern an owner’s usage of their home; members of your community association (or their visitors) who are overly noisy or leave their personal belongings in the common areas can cause tension and harm the overall harmony of your HOA.
We encourage all boards to communicate with their homeowners what areas within the association are common areas. If you’re a homeowner and your board hasn’t communicated what parts of your association make up the common areas, we encourage you to read your CC&Rs.
Once you’ve made certain that there isn’t any ambiguity over which areas constitute common areas, there are several rules commonly set in place to help maintain the common area.
If you’re a board member looking to alleviate certain problems in your association, consider the following suggestions:
- Ban your members from leaving trash and/or laundry in those areas.
For example, you may find your members leave their trash out in the hallways to take to designated community trash bin at a later time. While such actions are understandable, other members of the community (and visitors) may find the practice discourteous.
- Encourage your members to not leave any of their personal belongings in common areas. If they choose to do so, let them know that your HOA reserves the right to remove those items.
Whether it’s a bike attached to a clubhouse railing or a bushel of children’s toys scattered across a lawn, having these items in the common areas can be an eyesore and potentially even hazardous to other community members.
- Members should also refrain from causing a nuisance in your community common areas.
Nuisances include loud noises, inappropriate clothing, anti-social behavior, running, riding skateboards or bikes in the street, and playing music without wearing headphones.
Make sure you let your members know that they are also responsible for the actions of their tenants and guests. If a tenant or guest of a member violates the common area rules, the member will be held accountable for those actions.
While all the common areas fall under the jurisdiction of the HOA, there are some common areas, like a community’s playground, that often require special attention due to the risk associated with them.
Managing the Playground
Playgrounds represent a special challenge in an HOA’s risk management strategy, especially if children are unsupervised or if the equipment isn’t properly used or maintained. If injuries occur, the association liability could be high.
Although your association is responsible for the basic upkeep of playground equipment, HOAs aren’t generally responsible for supervising children at the playground.
When crafting or revising your playground’s rules, emphasize that:
- Parents should supervise their children at all times while on the playground.
- Children should be required to use the playground equipment as intended to reduce the risk of injury.
- Ban children from rough play like shoving, fighting, and throwing objects of any type while on the playground.
- Set specific playground hours that correspond with daylight hours, like 8:00 a.m. until dusk.
- The playground should be closed during stormy weather and anytime the equipment is wet. (This will reduce the possibility of accidents occurring on the equipment.)
- Pets should not be allowed in the playground’s areas.
- Children should not roller-skate, in-line skate, ride bicycles, or skateboard in the playground.
Ultimately, the HOA is responsible for making sure that the equipment is safe and follows the consumer product safety guides. Some HOA management companies will send community managers to the playground at least once a month to review the equipment and call in a vendor to perform an inspection and make repairs as necessary, and we consider this a best practice.
While it is the HOA’s duty to enforce the CC&Rs and enact any rules that improve the safety of the membership, some rules are either written in such a way as to be unenforceable, or become unenforceable via changing statutes on the federal, state, or local level.
Whenever you become aware of changes in laws regarding homeowners associations, it’s important to reflect these changes in your rules.
If your current rules contradict current laws, those rules become unenforceable. Even worse, you could be breaking the law. HOA management companies must look through the governing documents to make sure certain rules aren’t included to avoid problems. There are three rules often seen in community association governing documents that violate laws; it’s your responsibility to read through your documents to make sure these rules aren’t included.
The first rule HOA management companies look for in the governing documents is any rule barring children under a certain age from using the community pool. Many associations seek to ban children from the pool because children are more likely to be involved in pool accidents that could cause liability for the association.
HOAs do not have the right to ban children from your community’s pool. Banning children from the community pool violates the federal Fair Housing Law, and you could be responsible if a lawsuit were to occur.
The second rule regards banning the use of satellite dishes. By federal law, you cannot ban a member from installing and using a satellite dish. However, you can enforce a rule stating the dish cannot be more than one meter in diameter.
The third rule is regarding the use of solar panels. An association must be careful about banning the installation and use of solar energy panels. While technically only regulated at the state level, few states actively restrict their usage.
Even if you find them unsightly, they are here to stay. It’s also against the law in most states to make rules in order to make the process of installing solar panels too difficult or expensive for members.
Know the Rules, Improve your Community
While it’s not unheard of for an association to change rules (or start enforcing them) without any warning or notification to members, we considered this to be a bad practice. Transparency in an association is crucially important for maintaining trust and community cohesion. If you have any doubts about whether or not your homeowners know about any rules, we recommend alerting them immediately.
When all community and board members understand the governing documents, rules, and restrictions of your HOA, it’s much easier for everyone to follow those regulations. Just make sure that your HOA’s rules do not overstep any boundaries outside of their control, and you should find fewer complaints over the rules.