Mandatory vs. voluntary HOAs | How to opt out of an HOA | Can you refuse to join a new HOA | Why you need a lawyer | Dissolving an HOA | Opting out of specific services | How to resolve issues with your HOA | FAQs
✍️ Editor’s take: Getting out of an HOA is extremely difficult, but you might be able to pull it off if you meet some very specific conditions.
Bad homeowners associations (HOAs) can turn even a dream home into a nightmare. Whether you resent being told how high you can grow your grass or you’re just sick of paying HOA fees, you may be wondering how you can opt out of your HOA.
The bad news is that getting out of an HOA is usually very, very difficult. Short of selling your home and moving, it may even be impossible.
That said, getting out of an HOA may be possible in some circumstances, including if:
- Your HOA has a de-annexation clause
- Your HOA isn’t giving you the services it is supposed to provide
- The HOA’s paperwork includes technical or legal errors
Mandatory vs. voluntary HOAs
A homeowners association (HOA) is a membership-based organization that enforces a set of rules and regulations within a community, such as a subdivision or a condominium building.
HOA membership “runs with the land,” meaning that you automatically become a member of an HOA if you buy property in a community that is governed by one. As a member, you pay HOA dues, abide by the community’s rules, and get to elect members of the HOA’s board of directors.
» MORE: What is an HOA?
When it comes to opting out of an HOA, understand that HOAs come in one of two varieties: mandatory and voluntary. Whether or not you can actually leave your HOA largely depends on which type you belong to.
Mandatory HOAs are exactly as they sound: membership is non-optional. When you buy a house in a community governed by a mandatory HOA, you automatically become an HOA member.
Generally, you stay a member for as long as you own the property. Or until the HOA is dissolved, which happens rarely.
Unfortunately, although not necessarily impossible, getting out of a mandatory HOA is difficult.
Even worse, most HOAs — and especially the ones that homeowners tend to have complaints about — are mandatory ones. If you live in a condominium or a planned community, chances are you are part of a mandatory HOA.
The good news is that if there wasn’t an HOA already in place when you bought your house, you typically can’t be forced to join one that’s set up afterward. That said, state laws vary a lot, so don’t assume that you’re safe just because your HOA was founded after you bought your house.
Plus, you’ll need to read any Covenants, Conditions, and Restrictions (CC&Rs) that may have come with your house closely. You may find a clause in there that allows for an HOA to be established in the future.
If your home is a townhouse or part of a condominium project or a planned community, it will almost certainly have a set of CC&Rs, regardless of whether or not an HOA has been set up yet to enforce them. Typically, CC&Rs can be found in either the deed or in a separate document called the Declaration of Covenants, Conditions, and Restrictions.
Voluntary HOAs are also pretty self-explanatory. Membership in them is completely optional, and you can join or leave whenever you want. These HOAs are typically started by a group of people in the neighborhood who want to improve the community in some way.
Because membership is voluntary and can fluctuate, that means these HOAs often have fewer financial resources than mandatory HOAs. The services and amenities a voluntary HOA provides tend to be less extensive than what a mandatory HOA offers.
In a voluntary HOA, you can leave and stop paying your fees whenever you want, although that means that you’ll probably lose access to the benefits the HOA provides. For example, instead of getting access to the HOA’s tennis courts, you may have to pay a non-member use fee.
But unlike a mandatory HOA, voluntary ones don’t have the power to issue a lien against your property. At worst, if you don’t pay your dues, you will likely just get kicked out of the HOA.
How to opt out of an HOA
Opting out of an HOA is really hard, unless you’re lucky and your HOA is a voluntary one. That said, there are some limited instances where you may have a chance of getting out, including if:
- Your HOA has a de-annexation clause
- Your HOA isn’t enforcing its own rules
- Your HOA is treating your property differently than other properties
- Your HOA erroneously added your house to its membership list
- You weren’t informed about the HOA when you purchased your house
- Your HOA has made a technical or legal error in its paperwork
Just to be clear: meeting any of these conditions does not guarantee that you can say goodbye to your HOA. Chances are it will still be an uphill battle.
But if you think you might have a chance, now might be a good time to lawyer up.
And if you are stuck with your HOA, you always have the option of selling your house and moving somewhere that suits you better. Enter your zip code below to find out how Clever can save you thousands selling your house.
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Check if your HOA has a de-annexation clause
Some HOAs have a de-annexation clause that spells out how members can leave the HOA. You’ll find the de-annexation clause in your HOA’s Covenants, Conditions, and Restrictions (CC&Rs) which you should have received a copy of when you first bought your house.
Even if your HOA has a de-annexation clause, the chances of getting out by using it are slim. Typically, de-annexation requires an overwhelming majority of HOA members to approve your request for de-annexation.
There are a couple reasons why they are unlikely to do that:
- With you no longer paying fees, everybody else’s fees will probably go up.
- The HOA won’t be able to prevent you from altering your property in such a way that it brings down the property values of the entire neighborhood.
- You may still need to use HOA property, such as private roads, in order to access your property.
But if you can convince enough HOA members that it is in their best interests to let you leave, then you may have a chance. For example, your property may be older or it may sit on a larger lot than the other properties, thus costing the HOA more in maintenance and landscaping.
And if your HOA doesn’t have a de-annexation clause? That probably means it won’t even consider a request for de-annexation.
Is the HOA not doing its job?
Your HOA has a number of responsibilities, including enforcing the Covenants, Conditions, and Restrictions (CC&Rs), holding elections for board directors, and conducting regular meetings.
If the HOA is no longer enforcing the CC&Rs, electing board members, or holding regular meetings, it may be possible to argue that its CC&Rs are no longer enforceable. In this case, you’ll need an attorney to argue your case before a judge.
Typically, this situation will need to be going on for years. Ultimately, it’s the court’s decision whether the CC&Rs are still enforceable. If the community has already been effectively living without an HOA anyway, the court may declare the HOA dissolved.
The HOA isn’t treating you fairly
The HOA’s board of directors has a number of fiduciary duties, including a duty to act in the best interests of the community as a whole. That means a board member can’t do things that benefit themselves alone or that unfairly penalize a particular HOA member.
For example, your HOA cannot decide that it is going to provide landscaping services to all the homes in the community except yours just because one of the board members doesn’t like you. And the HOA cannot discriminate against you because of your:
- National origin
- Familial status (including families with children)
- Sexual orientation
If you feel as though your HOA is treating you differently than other members, you may be able to take your case to court. Be warned, however, that even if a judge agrees you’ve been treated unfairly, that doesn’t necessarily mean you’ll get to leave the HOA. You may just be awarded damages that the HOA will have to pay.
✍ Editor’s Note:
In special cases, some homes may receive different services than other homes for completely legitimate reasons.
For example, if your home is located on a public road but all the other homes in the HOA are located on private roads owned by the HOA, then it’s probably the responsibility of your local government and not the HOA to plow your road.
In cases like this, you may be able to negotiate lower HOA fees to reflect the difference in services. Opting out of the HOA entirely, however, will likely be much harder.
Your house should never have been in the HOA
It may turn out that your property should never have been included in the HOA in the first place. This can happen if a court determines that certain characteristics of your property distinguish it from the rest of the HOA.
For example, your HOA may be primarily made up of a gated community consisting of homes on private roads. However, your house was built separately from the rest of the community and lies outside of its gates. Your home may have been included in the HOA as a way for the HOA to increase its revenue, but otherwise your house and the community don’t share much in common.
A judge may decide that your home in this case is too different from the rest of the community to justify forcing you to remain an HOA member. Your case will also be helped if you can show that you aren’t receiving the same services as the other members.
You were never told about the HOA
When you buy a house, you need to know if it’s part of an HOA or if it could become part of one in the future. If you weren’t told about the HOA before purchase, it can be a nasty surprise to suddenly have an organization start demanding you pay fees.
But tricking somebody into joining an organization — especially one that comes with monthly dues — is a form of fraud. If you can show you weren’t told about the HOA, that may be enough to convince a judge to get you out of being a member.
But before you take your case to court, make sure that you actually weren’t informed. There’s a good chance that the HOA actually was mentioned somewhere in the paperwork you signed when you first bought the house.
Unfortunately, not reading the paperwork isn’t a good enough reason for a judge to let you leave an HOA.
But it is a reminder of how important having a good realtor is when buying a home. A realtor who knows your area can inform you about which homes are part of HOAs and which aren’t. Connect with local realtors now through Clever to get help finding the right house for you:
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The HOA messed up its paperwork
If you’re really lucky, the HOA may have simply messed up its paperwork. If there is a serious technical or legal error in the Covenants, Conditions, and Restrictions (CC&Rs), you may be able to argue that the CC&Rs are no longer applicable. It’s a long shot, but it may be worth a try.
Similarly, your HOA may have failed to file its paperwork properly. For example, in some states, non-profit corporations like HOAs have to re-register with the state after a set number of years or file annual notices. If they fail to do so, a judge may be able to declare the HOA dissolved.
You will definitely need a very good attorney to prove that the paperwork is defective. Make sure you choose one carefully since HOA law is highly specialized.
Can you refuse to join a new homeowners association?
It’s really difficult to get out of an HOA if your home was already part of one when you bought it. That’s not the case if the HOA was formed afterward.
You can’t usually be forced to join an HOA against your will, especially if the HOA didn’t exist when you moved in.
But verifying whether or not you’re being forced to join one is a bit more complicated than it sounds.
Check the paperwork that came with your house
The paperwork that you signed when you bought your house may have some unwanted surprises in it for you. The big one will be if the property is subject to a set of Covenants, Conditions, and Restrictions (CC&Rs). These are the rules that govern how an HOA is set up and run.
CC&Rs are enforceable, even if your community doesn’t have a functioning HOA. For example, your community may have had an HOA when it was built, but over time it was abandoned. This often happens when no one wants to serve on the board.
But if the CC&Rs are in the contract you signed when you bought your house, you have already given your consent to have an HOA in the community.
If you agreed to a set of CC&Rs when you bought the house, your options for getting out of the HOA are limited. But it will depend on the unique circumstances of your community.
For example, your HOA may be defunct and hasn’t filed its annual reports with the state licensing office for a very long time (i.e., decades). Plus, nobody in the community has been enforcing the CC&Rs. In that case, you may be able to argue that the CC&Rs are no longer enforceable. Ultimately, that will be for a judge to decide.
Where you live matters
When figuring out whether or not you can opt out of an HOA, it’s important to check your state and local laws. In some states, you will need 100% of residents in the community to agree to the HOA, whereas in others you need a simple or strong majority.
The ambiguity surrounding HOA law from state to state can create a situation where overly zealous neighbors may try to pressure you into joining a new HOA. Or they may try to convince you that you have no choice but to join. When that happens, talk to an attorney to find out what your options are.
In Texas, for example, if you live in a subdivision, you only need 60% of homeowners in that subdivision to form an HOA. Afterward, the entire subdivision is governed by that HOA. But to make things more complicated, if the HOA wants to create or modify restrictions in the community, it needs support from 75% of members.
Some states don’t even have laws governing how HOAs are formed. In those states, contract law usually applies if your neighbors are looking to form an HOA. That will likely mean that you can refuse to join since you can’t be forced into a contract.
Again, make sure you didn’t agree to any Covenants, Conditions, and Restrictions (CC&Rs) when you bought your house that bind you to an HOA. So long as you didn’t, then you are probably safe from being forced into an HOA you don’t want to join.
Why you need a lawyer to get out of an HOA
Opting out of an HOA is usually a situation where having an attorney is very useful. State laws vary a lot and the information you find online isn’t always reliable, even if it is given by well-meaning individuals.
Plus, HOA law is highly specialized. That’s why you need to choose your attorney carefully. Don’t opt for just any real estate attorney. Choose one who is highly experienced in HOA law specifically.
And go for one who represents homeowners rather than HOAs.
But before you do decide to call the lawyers, take a deep breath and ask yourself if this is really the route you want to take. Attorney fees can be very expensive and there is no guarantee that you will win your case.
Are you prepared to potentially lose a lot of time and money fighting to get out of your HOA? Taking legal action may be the only route left open to you, but don’t overlook other possible ways to resolve your issues with the HOA first.
Dissolving an HOA
Another way to get out of an HOA is to dissolve the HOA entirely. That may sound like a great idea, but be warned: it’s a long and difficult process.
But, if you’re really fed up with your HOA and you feel like you have no other options, dissolution may be a possibility.
The first step is to call a meeting and have members vote on dissolution. The percentage of members who will need to approve dissolution varies by state, but in most it is at least 80%.
But just getting most or even all of your fellow HOA members on board isn’t enough.
Next, you’ll need to file Articles of Dissolution (or the equivalent documents) with your state’s Secretary of State.
Then you will need to settle the HOA’s debts and transfer ownership of its assets. This is where things can get messy. For example, you may need your local government to agree to take control of some of the HOA’s property, like private roads or parks. If the local government refuses, that responsibility may fall back on the homeowners.
Or the local government may have the power to block dissolution of the HOA outright.
Plus, any contracts that the HOA has with third-party vendors will need to be terminated, which could further increase costs. Another complication is that mortgage lenders and insurers may get to veto a vote for dissolution.
So, dissolving an HOA is hard. But if you have the support of the community behind you, you may be able to pull it off.
Opting out of specific services
If getting out of your HOA entirely is impossible or too difficult, the second-best thing is to try to opt out of specific services.
Whether or not you’ll be able to do this depends on a number of factors, including what services you want to opt out of and what type of community you live in.
The easiest way to opt out of specific services is to try to negotiate with your HOA’s board of directors. The board is made up of fellow HOA members who live in the community, so they may be sympathetic to your request. But remember, the board may have good reasons for turning you down.
One reason your HOA may object to granting you an exemption is because of liability issues.
For example, you may want to opt out of having your driveway salted during the winter because it is killing your grass. It’s unlikely your HOA will agree to the request because putting down de-icing salt is a safety issue. If somebody were to slip and fall on your driveway because of a lack of salt, they could hold both you and the HOA responsible.
You may be able to propose a waiver with your HOA in this case. A waiver is essentially a legal document where you absolve the HOA of all responsibility for any safety risks created by your refusal to have your driveway salted. Your HOA, however, is under no obligation to agree to the waiver nor is there any guarantee that such a waiver would necessarily hold up in court.
Is your exemption fair?
Another reason your HOA may refuse an exemption is because of fairness. Your HOA has a fiduciary duty to work in the best interests of the community as a whole. If they start favoring certain homeowners with exemptions, they may be in violation of that duty.
But again, it will depend on what you’re asking for and the characteristics of your house and the community. For example, if your property is physically separated from the rest of the community, you may be able to convince your HOA that you can take care of your own landscaping since whatever you do with your lawn probably won’t have much impact on the property values of the rest of the community.
Also, you may have a legal right to an exemption under the Americans with Disabilities Act. If you need to install a wheelchair ramp to access your front door, your HOA is required to let you build one regardless of what its rules are about exterior modifications.
If you do manage to opt out of specific HOA services or rules, it’s also worthwhile to try to negotiate a lower HOA fee. After all, if you’re not getting the same level of service as everyone else in the community, it probably doesn’t make sense to pay the same dues.
How to resolve issues with your HOA
HOAs are definitely not for everyone. From overly restrictive rules to high fees, you may have a lot of reasons for disliking your particular HOA.
But before you decide to leave your HOA entirely, consider if there are alternative steps you can take to resolve the problem. As we’ve said repeatedly, there is rarely an easy way to get out of an HOA.
If you have specific problems with your HOA, you are probably not the only one in the neighborhood who does. As an HOA member, you have the power to propose changes to your HOA’s rules.
Talk to your neighbors about the problem and see if you can garner enough support to tackle it. A simple majority vote may be enough to get rid of an overly restrictive rule that has been making life difficult for you and others.
You also have the right to run for election to the HOA’s board of directors. Get on the board, and you can start running the HOA more how you think it should be run.
If you think your current board members aren’t doing their jobs or are engaged in wrongdoing, most HOAs have a process for removing them before their terms end.
And if none of that works, there is always one surefire way of getting out of your HOA: selling your house. Contact us today to find out how Clever can help you say goodbye to your HOA and save you money at the same time.
Can I opt out of an HOA?
Probably not, except in very unique circumstances. If you are part of a mandatory HOA, there is rarely a way to opt out. If you belong to a voluntary HOA, you can leave whenever you like. However, most HOAs are mandatory HOAs.
Can I be forced to join a new HOA?
If your property wasn’t part of an HOA when you bought it, then you usually can’t be forced to join one afterward. State laws vary, however. In some, a large majority of homeowners in a community is all that is needed to bind that entire community to a mandatory HOA.
Can I refuse specific HOA services?
Not usually. Exempting certain households could decrease property values for everyone or it may expose the HOA to liability issues. That said, depending on the service being provided, you may be able to negotiate an exemption with your HOA.
What is de-annexation?
De-annexation is the legal term for opting out of an HOA. When you de-annex from an HOA, your property is no longer part of the HOA community.
If my HOA doesn’t have a process for de-annexation, can I leave whenever I want?
No. While some HOAs have a process for de-annexation spelled out in their Covenants, Conditions, and Restrictions (CC&Rs), many don’t. HOA membership is still mandatory regardless of whether or not the HOA has a de-annexation process.
If a majority of homeowners want to dissolve an HOA, can they?
Maybe. A majority vote is usually not sufficient on its own to dissolve an HOA. For one, you may need more than a simple majority vote. In some states, 100% of members need to vote for dissolution. Second, there are other issues that will need to be resolved, including settling the HOA’s debts and transferring assets. Mortgage lenders, insurers, and the local government may also need to approve the dissolution.
Can you refuse to pay HOA fees?
No. HOAs have the power to issue and collect fees and fines. Refusing to pay could result in a lien being placed on your property. You do, however, have the right to dispute a fine or fee increase.