A homeowners association (HOA) consists of property owners who live in a particular condominium or residential neighborhood. Essentially, an HOA aims to ensure the building and property use regulations are enforced and that common areas are well maintained.
What happens, though, if HOA regulations aren’t enforced or are being ignored? Maybe your landscaping is overgrown or dead, or the elevator to your apartment hasn’t been fixed for months. Perhaps you want to carry out construction work, but the HOA isn’t approving your construction plans. You know your HOA is responsible for taking care of these things, but what rights do you have, and what legal action can be taken when HOA rules aren’t followed?
The options a property owner has to get the HOA to enforce the community’s rules and regulations largely depend on the situation and the HOA’s governing documents. You can, for instance, start legal action against an HOA that doesn’t enforce the community’s rules and regulations, remove a member of the board of directors of the HOA, or amend the conditions of the governing documents. Unfortunately, each option is often expensive, time-consuming, and complicated.
Another idea is to join the board to make sure your voice is heard. If you decide to do this, be sure to learn about campaigning for an HOA board.
If you’re a property owner with an issue with your HOA, you should first discuss the problem with the board of directors. Start by scheduling a meeting with the board and presenting evidence about why you feel the HOA should enforce a specific rule.
Bring copies of relevant provisions from the governing documents and any evidence or witness that could be helpful in the meeting. Your HOA may side with you and enforce the rules as you request. Even though the HOA doesn’t have enforcement powers, the rules shouldn’t be ignored–the HOA can take measures to get the offending property owner to comply by sending written notifications of a violation. In some cases, you may need to know how to change HOA rules.
The process for amending the governing documents varies among HOAs and is governed by the documents themselves. If the goal is to give the HOA enforcement powers, most likely, the Covenants, Conditions, and Restrictions (CC&Rs) will probably need to be amended. This is often a daunting process, as many CC&Rs amendments require unanimous or majority consent of the voting members. However, if these requirements are met, the property owner could, for instance, amend the governing documents to give the HOA the ability to sue or fine a violating property owner or to enter a property to sort out a rule violation.
Sometimes, the HOA may not enforce rules because a member of the board of directors isn’t performing his or her duties properly. For example, this may happen if a board member can’t enforce a rule because of a conflict of interest or because the individual is corrupt or lazy.
If you believe a rule isn’t being enforced because a board member is acting inappropriately, you can seek to have the board member removed. As with the amendment of governing documents, this process is also challenging because it requires a unanimous vote of the other board members.
You can sue the HOA if the entire association isn't performing its duties or if you can’t remove non-performing board members. In addition, the HOA has obligations under federal and state laws–it must fulfill its responsibilities fairly and reasonably, act in the community's best interests, and not act in a capricious or discriminatory manner.
Legal action may be warranted if you can prove that the HOA is acting in a discriminatory or unreasonable manner by not enforcing community rules and regulations, or if the association doesn’t put the community’s interests above their personal interests.
For instance, maybe a property owner isn’t fined for violating HOA rules because they’re a member of the board. While this decision benefits that board member, it could damage the entire community by lowering home values in the community. Here, the HOA might be breaching its fiduciary duty to the community.
Unfortunately, lawsuits against HOA are often expensive and lengthy, and the outcome is often uncertain. Unless the issue with the HOA is significant and the evidence is conclusive, legal action is often not worth the expense and time.
Your options to get an HOA to enforce rules largely depend on the HOA’s governing documents and the situation. You can, for instance, take measures to remove a non-performing member of the board of directors of the homeowner association; you can also sue your HOA if you can’t remove a non-performing board member. In addition, you can seek to amend the bylaws and governing documents to give your HOA the authority to sue or fine violating property owners.