Unenforceable HOA Rules

By 

Michael Warford

Updated 

February 22nd, 2021

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HOA rules can keep a community tidy, safe, and pleasant. But sometimes an overzealous HOA makes headlines for rules that are annoying, offensive, or just downright strange.

For example, take the Florida HOA that tried to shut down a child’s lemonade stand. Or the California HOA that passed a rule requiring everyone to keep their garage doors open throughout the day. Or the Georgia HOA that fined a homeowner $3,400 for his pink flamingo.

Rules like these may sound like HOAs run amok, but the truth is most HOA rules — even the seemingly outlandish ones — are enforceable. Luckily, that doesn’t mean all are.

An HOA rule may be unenforceable if it:

If you’re currently living in an HOA or thinking about buying a house in one, it’s a good idea to know what your rights are in the face of far-reaching HOA rules. Let’s take a closer look at what makes some HOA rules unenforceable.

» LEARN: What is an HOA?

What are unenforceable HOA rules?

You might not like an HOA’s rules. Unfortunately, that doesn’t mean they are necessarily unenforceable. When you live in a community governed by an HOA, you enter into a contract that binds you to its rules. Those rules are presumed to be enforceable unless there is a good reason for them not to be.

An HOA rule is unenforceable if it goes against a specific federal or state law. While federal laws apply to HOAs everywhere, state laws — although they apply only to specific states — tend to be more restrictive about what HOAs can and cannot prohibit.

HOA rules vs. federal laws

There are a few instances where rules are completely unenforceable no matter which state you live in. This is the case when a rule violates one of a handful of federal laws. These laws make HOA rules unenforceable if:

  • They are discriminatory under the Fair Housing Act
  • They try to ban homeowners from flying the U.S. flag
  • They try to ban satellite dishes or antennas
  • They violate special protections for servicemembers

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Rules that violate the Fair Housing Act

The Fair Housing Act (FHA) prohibits discrimination in housing on the basis of seven protected classes:

  • Race
  • Color
  • Disability
  • National origin
  • Familial status
  • Sex
  • Religion

An HOA cannot make rules that adversely affect a person’s right to buy, rent, or enjoy their home based on their membership in a protected class.

The FHA bans blatant discrimination, such as an HOA banning homeowners who are members of a certain race or religion. Under the “familial status” protection, it also bans discrimination against children, families with children, pregnant women, or any group on the basis of age.

A rule doesn’t have to be explicitly or even intentionally discriminatory for it to run afoul of the FHA. This can happen if a rule has a “disparate impact” on one or more protected classes.

For example, a New Jersey HOA was sued for discriminating against its Orthodox Jewish residents by locking its gates on Saturdays. Residents needed to use an electronic key card to unlock the gate, but since those observing the Orthodox Jewish faith are forbidden from using electricity during the Sabbath, they were effectively locked inside the community. The case was eventually settled and a judge ordered the HOA to pay the plaintiffs’ legal fees.

Disability rights are also a special consideration under the FHA. HOAs must make reasonable accommodations or modifications for members who live with a disability.

A reasonable accommodation, for example, includes permitting service animals in a community that otherwise bans pets. A reasonable modification entails physical changes to the property, such as installing wheelchair ramps or widening hallways.

Reasonable accommodations and modifications can only be denied if they present an undue financial or administrative burden on the HOA.

Rules against flying the US flag

The Freedom to Display the American Flag Act is an unusual piece of legislation because it is the only federal law that specifically addresses HOAs. The law prohibits HOAs from banning members from displaying the U.S. flag on their own property.

However, the act also gives HOAs some leeway for how the flag can be displayed. Specifically, the act allows HOAs to impose reasonable restrictions on the flag’s display in terms of “time, place, or manner.”

That basically means that your HOA can restrict how large your flag is, the height of your flag pole, or where on your property it can be located. Importantly, the law only applies to private property and not to shared areas.

Also, the act doesn’t protect displays of the flag that violate the U.S. Flag Code. So, homeowners do not have a right to display the flag in a vulgar or disrespectful way.

While the Freedom to Display the American Flag Act only applies to the U.S. flag, many states have their own laws that provide similar protections for state flags and U.S. military flags.

Rules against satellite dishes and antennas

This one might come as a surprise, but you actually have a federally protected right to TV 📺! Thanks to the Telecommunications Act of 1996, your HOA’s rules can’t impair the installation, maintenance, or use of satellite dishes, TV antennas, or wireless cable antennas.

The law means that your HOA cannot pass any rule that interferes with your ability to install a satellite dish or antenna, including rules that interfere with the quality of the dish or antenna’s signal. The HOA also can’t pass a rule that makes installing or maintaining a satellite dish or antenna unreasonably expensive.

There are some exceptions to the act. For one, it doesn’t apply to satellite dishes that are larger than one meter (39.37”) in diameter — except in Alaska, where it applies to all sizes. It also doesn’t apply to shared property, but only to areas where you have exclusive rights, such as your balcony or roof.

Your HOA can also pass restrictions on satellite dishes and antennas for safety reasons or for historical preservation. Plus, if your HOA has a common or central antenna, it can pass rules against personal satellite dishes and antennas.

Rules that violate the Servicemembers Civil Relief Act

The Servicemembers Civil Relief Act protects active duty servicemembers from debt collections and foreclosure proceedings, including by HOAs. It also prevents HOAs from charging servicemembers more than 6% interest on debts while they are on active duty or for one year after discharge.

Plus, it gives servicemembers the right to terminate their lease effective 30 days after their next rent payment.

The act only applies to active servicemembers in the U.S. Army, Navy, Marine Corps, Coast Guard, or Air Force.

While the act doesn’t necessarily make HOA rules unenforceable, it means some HOA rules that are applicable to most members may not be applicable to servicemembers.

If an HOA’s rule is found to violate the act, the penalty is usually to reverse the rule in question and for the servicemember to get their money back (in cases of overpayment). However, HOAs could be slapped with fines if a judge determines that it knowingly violated the law.

HOA bylaws vs. state laws

While federal laws restricting HOA rules are limited, that’s not the case with state laws. There’s a good chance your state goes far beyond federal laws with its own laws targeting HOAs.

Many states expand upon the federal laws we looked at above. For example, California adds sexual orientation and gender identity to the list of groups protected against discrimination under the Fair Housing Act (FHA).

Arizona, meanwhile, prohibits HOA rules that ban members from displaying not just the American flag, but also the Arizona state flag, U.S. military flags, the POW/MIA flag, flags of Arizona Indian nations, and the Gadsden Flag (i.e., the ‘Don’t Tread on Me’ flag).

Other state laws address specific issues that federal law doesn’t address. For example, California law gives homeowners the right to one pet, meaning HOAs cannot ban pets outright.

Environmental sustainability is an important issue for many people, which is why some states have moved to protect homeowners’ rights to sustainable practices. For example, California, Colorado, Florida, and Texas ban HOAs from prohibiting drought-resistant landscaping, also called xeriscaping.

A growing number of states, including California, Colorado, Florida, Hawaii, and Oregon, protect the right of homeowners to install charging stations for electric vehicles.

Clotheslines

Many states make it illegal for HOAs to ban clotheslines since drying clothes outside consumes far less energy than a dryer. While clotheslines are a matter of environmental sustainability, many HOAs consider them unsightly and often try to ban them. Hence, many states enshrine your “right to dry” into law.

These so-called “right-to-dry” states often still let HOAs impose some restrictions on the size and placement of clotheslines. For example, an HOA may require that the clothesline be no higher than your fence so that it’ll remain out of your neighbors’ view.

Solar Panels

Solar panel laws protect homeowners’ rights to install solar panels and similar devices on their properties. As with clothesline and drought-resistant landscaping protections, these laws help HOA members make their homes more environmentally friendly.

Solar panel laws come in two types: solar access and solar easements. Solar access laws guarantee a homeowner’s right to install solar panels on their property. This means that an HOA cannot pass a rule that bans members from installing solar panels. However, they can usually ban solar panels from being installed on shared property.

Solar easement laws refer to homeowners' rights to ensure that their solar panels continue to receive sunlight. Easement laws allow you to negotiate contracts with your neighbors and HOA to ensure your solar panels get enough sunlight. This protects you from neighbors or HOAs who try to make modifications that would make solar panels less effective.

For example, if you install solar panels on your roof, an easement helps assure you that your neighbor won’t build a second story that blocks sunlight from reaching your solar panels.

Political Activities

HOAs are largely free to limit political activities, especially in shared areas. Some HOAs prohibit common areas from being used for political gatherings, for example, while others ban political signs.

HOA rules that limit members’ political activities tend to provoke plenty of controversy. While political activities are usually considered a form of free speech and therefore protected by the U.S. Constitution, this protection doesn’t extend to HOAs.

Whether or not rules restricting political activities are enforceable depends on where you live. Many states have laws that restrict the ability of HOAs to ban certain types of political activities.

California, for example, gives HOA members the right to gather in shared spaces for the purpose of discussing political issues. Arizona, meanwhile, protects door-to-door political activity within an HOA, so long as it is done during daylight hours and the person wears a name badge.

Rules against political signs are a particularly contentious issue. Many HOAs attempt to ban political signs on the basis that they are unsightly, make the community look cluttered, and decrease property values. In fact, one survey found that only 36% of large-scale residential HOAs actually permit residents to display political signs.

In response, 14 states protect the right of HOA members to display political signs. These rights are often limited to the months running up to an election or referendum, meaning that HOA rules against political signs are often enforceable outside of election season.

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Why valid HOA rules may be unenforceable

Even if an HOA rule doesn’t violate any federal or state laws, it could still be unenforceable for other reasons. This is often the case when an HOA rule is:

  • Inconsistently enforced
  • Procedurally flawed
  • Substantively invalid

Inconsistent enforcement

If an HOA rule isn’t being enforced fairly, there’s a good chance it is completely unenforceable. For example, if your HOA is only fining certain homeowners for parking RVs in their driveways but not others, that is an example of inconsistent enforcement.

Inconsistent enforcement also happens if long periods of time go by when a rule isn’t enforced. For example, if an HOA hasn’t been enforcing its own rule against blue doors for 10 years, it will have a hard time suddenly deciding to fine everybody who has a blue door.

Inconsistent enforcement cases often overlap with FHA cases. An HOA enforcing certain rules against homeowners who belong to a protected class but not others is an example of discrimination.

Procedurally flawed

Many otherwise valid HOA rules run into problems because of procedural flaws. This typically means that the HOA didn’t follow its own procedures or state law for introducing a new rule or regulation.

For example, many HOAs require new rules to be voted on by members, with some requiring super majorities. If a board tries to pass a new rule without a vote or doesn’t reach a super-majority threshold, the rule may be unenforceable.

Most states also require any rule changes to be registered with the local land records office. Failure to do so — which often occurs with inexperienced board members — means that an otherwise valid rule is unenforceable.

Substantive invalidity

Finally, a seemingly enforceable rule may be unenforceable because of substantive invalidity. Essentially, this means that the rule in question goes beyond the HOA’s powers.

If a rule violates a state law — such as the ones we described above — that is an example of a rule having substantive invalidity.

But a rule doesn’t necessarily need to violate state or federal law to be substantively invalid. It can also be invalid simply because it is not “reasonable.”

In the context of HOAs, a rule is generally considered “reasonable” by the courts if the burden it places on members is less than the benefit it provides to the community as a whole. Usually, this means that an HOA rule is enforceable so long as the rule is likely to improve property values or improve the security of the community.

For example, many HOAs have restrictions on short-term rentals. These rules are usually enforceable since they don’t place an undue burden on homeowners, while arguably improving the safety of the community by ensuring that properties are only occupied by homeowners.

An HOA may have trouble enforcing its rules if it goes beyond what its Covenants, Conditions, and Restrictions (CC&Rs) say it can do. For example, one Virginia HOA found itself on the hook for $400,000 in legal fees in a case that originated over a dispute about a member’s election sign being four inches too high. The issue wasn’t so much that the HOA’s rules were unenforceable, but that its CC&Rs didn’t give it the right to issue fines.

Homeowners’ constitutional rights in an HOA

HOA rules often cause controversy because so many of them seem to infringe on constitutional rights. Displaying a political yard sign, for example, has been declared by the U.S. Supreme Court as a form of free speech protected by the First Amendment. Yet many HOAs continue to ban political yard signs and, in most states, they are completely within their rights to do so.

That’s because constitutional rights only apply to relationships involving the government. If the government is not involved, constitutional protections don’t typically apply.

When you buy a home in an HOA community, you enter into a private agreement with that HOA to abide by its rules and regulations. As such, contract law tends to apply more often than constitutional law does. Unfortunately, contract law offers very limited protections for constitutional rights.

That’s not to say that your HOA can run roughshod over your rights. What you do in the privacy of your own home, for example, is largely beyond what HOAs can regulate. Although even then some rules — such as banning smoking or loud music — may still be enforceable. Protections in the Fair Housing Act against discrimination also ensure that some — but not all — consitutional rights are in effect protected in HOAs.

Also, many state laws exist that ensure HOAs abide by specific constitutional rights. For example, while there is no federal law that protects homeowners from rules that restrict freedom of speech, 14 states do have laws that allow political yard signs in HOAs.

Can an HOA change its rules after purchase?

If an HOA changes its rules after you move in, you may be wondering if it has a right to make you live by its new rules. The answer is, it depends!

Usually, an HOA is free to change its rules and to force all existing members to abide by the new rules. Every HOA has its own process for changing and adding rules and, so long as it follows that process properly, there is generally no problem with enforcing them on everyone.

The one exception is called grandfathering. Grandfathering is your right to continue doing something that an HOA may now forbid, so long as you were doing it when the HOA didn’t forbid the action.

» LEARN: How to opt out of an HOA

For example, if you own a dog in an HOA that permits pets, you usually have a right to keep your dog even if the HOA later decides to ban pets.

However, grandfathering doesn’t apply in all situations or to all rules. Plus, the extent to which it is applied varies a lot between states.