HOA rules are rules that members of the HOA community create and enforce to regulate the area. HOA rules and covenants exist to inform homeowners what they can and can’t do. But even in the HOA, there are some things beyond the HOA’s authority, and that’s an unenforceable HOA rule.
What is an unenforceable HOA rule?
An unenforceable HOA rule falls under the following categories:
- Violates rights or breaches laws
- No power to act
- Enacted incorrectly
- Enforced inconsistently or selectively
Let’s take a closer look at what each of these means.
Violates Rights or Breaches Laws
Federal and state laws take precedence over any HOA and its governing documents. This is why an HOA rule that violates the law is considered unenforceable. Examples of rules that could be problematic and unenforceable are freedom of speech (usually concerning politics or patriotism), discrimination, the right to bear arms, and religious freedom.
No Power to Act
No power to act means if an HOA holds no authority to act on a specific rule, it can be unenforceable. An example of this would be if the HOA can fine homeowners? Yes, they can if there’s been a rule violation, but not just because. HOAs can only fine homeowners for violations stated in the HOA documents or as state laws allow it.
Enacted Incorrectly
There is a right and wrong way to enforce new rules or change existing rules. When HOAs don’t follow the proper process as written in their enactment procedure within state laws and the HOA governing documents, then there are problems. There’s only a problem when the correct procedures aren’t followed. Then it becomes unenforceable.
Enforced Inconsistently or Selectively
If an HOA does not enforce rules equally or does not follow proper procedure when enforcing a rule, then the rules can be seen as unenforceable. This is why it’s essential to follow the procedural requirements in the HOA governing documents when enforcing a rule. This typically looks like sending a written notice and providing the homeowner a chance to talk to the board. If it’s not followed, the homeowner can challenge the enforcement of the rule.
Selective enforcement is another issue of its own. This can happen if an HOA applies one rule to one homeowner but not the other or if the board applies some rules but ignores others. Homeowners can sue an HOA board for selective enforcement.
How To Stop Unenforceable HOA Rules
Some tips to stay away from these unenforceable HOA rules are:
- Having HOA rules that better the community
- HOA rules should be fair and reasonable
- Rules should be understandable and easy to follow
- Rules should not violate any laws or homeowners rights
- Avoid vague language in rules
- Rules should define obscure words if they have to be used (like what is considered a nuisance or unappealing?)
- The HOA should enforce rules consistently and uniformly
If your HOA needs help, contact Prism Realty Management. Give us a call at 512-676-5842 — we’d be happy to talk to you about who we are, the services we offer, and our process.