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Home Owners' Association Basics

Home owners' associations ("HOAs") are usually non-profit corporations, set up to maintain a certain standard quality in the neighborhood. The aim is to keep property values in a condo building or subdivision as high as possible. HOAs are run like any corporation, with a board of directors (elected by the members), meetings, minutes, strict record-keeping, and annual budgets.
 
Restrictions
 
Restrictions on what an owner can do with his or her property are found in a Declaration of Covenants, Conditions and Restrictions ("CC& Rs") that the owner signed when buying the property.
 
Typical restrictions on property include the following: 
  • Colors used to paint a house
  • Type or weight of pets and where (if anywhere) they can roam
  • Height and type of fencing
  • Landscaping design and maintenance
  • Garage size and location
  • Number and type of vehicles (for example, a ban on motor homes, boats, trailers, or all-terrain vehicles) 
Enforcement
 
The CC&Rs govern what can and cannot be done. By-laws may also dictate restrictions and enforcement, so these documents should be reviewed closely to determine whether a particular situation is addressed.
 
If the CC&Rs aren't being followed or enforced by the HOA board, try talking informally with one of the board members. It may be that the board isn't aware they aren't exactly following the rules. A follow-up letter may be desirable to put the board on notice of the exact issue and what the CC&Rs or bylaws require. It's helpful to get other members' signatures, as well.
 
Breaking the Rules
 
If your client wants to do something outside the restrictions set by the CC&Rs or bylaws, it's an uphill battle. Most HOAs will require a petition for a "variance," complete with a formal hearing before the board. Obtaining neighbors' written permission to deviate from neighborhood standards can be helpful. If the board sees that many members approve, it's less likely they'll oppose a variance. It also helps to show that the rule sought to be violated is unreasonable because it is outmoded, illegal or unsafe in some way. For example, it is illegal to discriminate against families with children, so restrictions on how families can use community clubs or other common areas may be illegal.
 
If the association board refuses to grant a variance, it may be possible to amend the CC&Rs or bylaws. The documents themselves should detail the procedures required for changing the rules. If all else fails, advise your client to attempt to get new board members elected at the next election.
 
Fee Assessments
 
HOAs have the right to assess fees to each member for the maintenance and repair of common property, such as lobbies, community centers, common roofs, parking lots and garages. Fees aren’t necessarily appropriate, however, especially if no meetings have been announced to discuss the necessity of repairs or maintenance. A careful reading of the CC&Rs will illuminate the fine points of how much the fees can be increased and in what circumstances.
 
Taking It to Court
 
Suing a neighbor or HOA should always be a last resort, for the obvious reason that it's tough for a home owner to litigate against someone who lives next door. If all options have been exhausted, however, litigation may be necessary.