Becker & Poliakoff

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Owners Can Record Meetings; Free Speech Rights Unclear

Q: I recently agreed to serve on the board of my condominium association. There is one owner who comes to many of the board meetings and sits in the front row with his phone device pointed at the head table. I assume he is recording the meetings, which I understand he has the right to do. My question is whether there are any limits on what this person can do with his recordings. For example, can he take photographs of me or other board members and post them on social media type sites? (J.L; via e-mail)

Audit Requirements Depend On Revenue

Q: I recently asked to inspect the financial records of my homeowners’ association. As part of that inspection I discovered that the association has not had an audit for at least the last seven years. When questioned, the treasurer stated that the association does not have to perform audits. Doesn’t every association have to have an annual audit? (A.G., via e-mail)

What Can an HOA Legally Require Residents to Do?

Homeowners’ association (HOA) laws vary widely from state to state. For example, while Florida has enacted a lengthy list of rules and restrictions governing HOA activities, New York is yet to adopt a law that applies specifically to HOAs. With this in mind, when it comes to understanding what an HOA can legally require residents to do, the rules are not uniform across the United States.

With that said, there are several basic principles that govern the relationships between HOAs and homeowners. In this regard, it is important to keep in mind that homeowners who live in neighborhoods governed by HOAs do so voluntarily. If someone doesn’t want to live in a neighborhood that has an HOA, they can buy a home somewhere else. Homeowners in HOA neighborhoods agree to comply with the HOA’s rules and regulations when they buy, and this arm’s length contractual relationship is important to keep in mind as well.

14 Common (and Generally Legal) HOA Covenants, Conditions and Restrictions

For developers seeking to establish homeowners’ associations and managers of existing HOAs, it is imperative to understand what rules they can and cannot enforce. So, where are the lines drawn? Again recognizing that laws vary between states, generally speaking, HOAs have broad authority to adopt and enforce rules that are intended to benefit the neighborhood and its homeowners at large. For example, some common (and generally legal) HOA covenants, conditions and restrictions include:

  1. Architectural Standards and Guidelines Homeowners’ associations can generally establish standards and guidelines for architectural design within the community. These standards and guidelines can touch on everything from square footage to the style of façades and roofs. HOAs can enforce these standards and guidelines by requiring approval of architectural plans prior to construction and by requiring homeowners to remedy any violations that deviate from their approved plans.
  2. Exterior Storage and Outbuildings
    Homeowners’ associations also have the general ability to regulate the construction of exterior storage facilities and outbuildings. They can prohibit the construction of these buildings outright, establish restrictions regarding height and size, require pre-approval of plans in accordance with the neighborhood’s architectural guidelines, and restrict the types of storage for which these buildings can be used. HOAs can also generally control the placement of exterior storage facilities and outbuildings, such as requiring them to be placed behind homes or a minimum distance away from property lines.
  3. Home Updates, Additions and Remodeling
    Just as HOAs can enforce architectural standards and guidelines for new home construction, they can also enforce standards and guidelines for home updates, additions and remodeling. As a practical matter, these two sets of standards and guidelines will often be the same. From paint colors and architectural embellishments to the footprint of new additions, HOAs have broad authority to establish rules designed to preserve the look, feel and home values of their communities.
  4. Restrictions on Lawn and Holiday Decorations
    Lawn ornaments and holiday decorations are often a point of contention between HOAs and homeowners. This is because many homeowners incorrectly assume that they have the right to use their property how they see fit. While this is true to an extent, and while First Amendment protections will come into play in some cases, HOAs still have the ability to regulate matters that affect neighboring property owners and the community as a whole.
  5. Home Landscaping and Maintenance Requirements
    Homeowners’ associations can impose landscaping and maintenance requirements designed to ensure that neighborhood homeowners maintain appropriate upkeep and landscape their properties in a consistent manner. This extends well beyond requiring homeowners to keep their lawns and bushes trimmed. HOAs can also require pre-approval of landscaping plans, require or encourage the use of native plant species, and require homeowners to remedy violations—even if it means replacing or removing plants that a homeowner installed without proper approval.
  6. Noise Restrictions
    Noise complaints are common in residential neighborhoods, and HOAs can enforce restrictions with regard to both time and volume. When enforcing neighborhood noise regulations in response to complaints, HOAs must be careful to fulfill their obligations without getting themselves unnecessarily involved in civil disputes between homeowners or in matters that require the involvement of law enforcement.
  7. Fences, Swimming Pools, Playsets and Basketball Hoops
    In addition to houses, outbuildings, and landscaping, homeowners’ associations can also establish and enforce rules governing fences, swimming pools, playsets, basketball hoops and other items. These rules can go so far as to prevent homeowners from installing these items, or they can establish standards and guidelines while making any proposed installations subject to HOA approval. For example, it is fairly common for HOAs to require homeowners to install the same type of fencing (or choose from a limited list of style options) and to require that any playsets be placed in backyard areas that are not visible from neighborhood roads.
  8. Parking and Vehicle Restrictions
    Homeowners’ associations can restrict the number of vehicles homeowners can park on their property. They can also establish rules regarding roadside parking; and, in neighborhoods with parking lots, they can establish rules regarding designated homeowner and visitor spaces. HOAs can also prohibit homeowners from storing inoperable vehicles on their land.
  9. Boat and Personal Watercraft (PWC) Restrictions
    In neighborhoods near lakes, rivers and coastal areas, it is common for many homeowners to own boats or personal watercraft (PWC). HOAs can prohibit homeowners from storing boats and PWCs in their driveways or on their land, and they can also establish rules that allow homeowners to park their boat or PWC trailers in their driveways temporarily while preparing for (or cleaning up after) a day on the water.
  10. Pet Rules
    Homeowners’ associations can enforce pet rules including restrictions on the size and number of pets that homeowners house. HOAs can also establish leash rules and other similar types of requirements; and, in neighborhoods with dog runs and dog parks, HOAs can establish rules regarding hours, capacity, uses and other relevant matters as well.
  11. Short-Term Rental Rules
    With the advent of apps like Airbnb and its competitors, short-term rentals have become increasingly common in residential neighborhoods in recent years. Oftentimes, homeowners will rent out their homes while on vacation, or even allow people to rent their homes while confining themselves to an apartment in the basement or above the garage.While some homeowners prefer to have the ability to rent their homes, others will prefer not to have strangers sleeping next door on a regular basis. With this in mind, in today’s world, HOAs can and should adopt short-term rental policies. Like all covenants, conditions and restrictions, these policies should clearly establish what is and isn’t permitted.
  12. Trash and Recycling Rules
    Homeowners’ associations can establish requirements regarding the placement of homeowners’ trash and recycling bins. HOA rules routinely require homeowners to keep these out of view, except on pick-up days. Whether this means keeping them in homeowners’ garages, on their back patios or behind visual barriers is a matter that should be addressed based on the unique characteristics of each individual community.
  13. Use of Common Areas
    In neighborhoods with swimming pools, parks and other common areas, HOAs can (and generally should) adopt rules and restrictions governing access to and use of these community facilities.
  14. Pay Dues and Assessments
    Finally, HOAs have the legal authority to require homeowners to pay dues and assessments. This includes both annual dues and special assessments—as calculated in accordance with the community’s governing documents. HOAs can enforce homeowners’ payment obligations through various means, including the imposition of fines and late fees, as well as placing liens on homeowners’ properties (in accordance with applicable law).

When Do HOA Rules, Restrictions and Activities Cross the Line?

While homeowners’ associations generally have broad authority to impose requirements on homeowners, this authority is far from absolute. HOAs must be careful to avoid crossing the line between preserving neighborhood standards and violating homeowners’ rights. Some examples of HOA rules, restrictions and activities that may cross the line include:

  • Interfering with Homeowners’ Property Rights – Covenants, conditions and restrictions must not interfere with homeowners’ property rights. This has implications under federal condemnation and eminent domain laws.
  • Discriminatory Policies and Enforcement – HOAs must not adopt policies that are discriminatory in their nature or their effect. They must avoid engaging in discriminatory enforcement practices as well.
  • Selective Enforcement – Selective enforcement is also generally prohibited. This means that HOAs cannot favor particular homeowners or approved architectural styles or pets, for example, over others. With limited exceptions, options that are available to some homeowners must be made available to all homeowners within the community.
  • Ex Post Facto Enforcement – HOAs generally cannot require homeowners to make changes based on covenants, conditions and restrictions that are adopted after homeowners have already constructed, remodeled or landscaped their properties in accordance with pre-existing rules and regulations. This is referred to as ex post facto (or “after the fact”) enforcement.
  • Violation of the HOA’s Governing Documents – Homeowners’ associations must operate in accordance with their own governing documents. When community managers or others exceed the scope of authority or neglect their duties, this can (and often will) lead to disputes with homeowners.

10 HOA Rules that Break the Law

While homeowners’ associations (HOAs) adopt and enforce rules, they are also subject to rules themselves. In fact, there are numerous rules that govern HOA practices at the local, state and federal levels. When adopting and enforcing rules, HOAs need to be very careful to ensure that they are complying with the law—as failure to do so has the potential to lead to costly, time-consuming and publicized litigation.

Generally speaking, HOAs have broad authority to adopt and enforce rules that are intended to promote a desired look and feel, and that are designed to protect homeowners’ property values. However, HOAs must also respect and observe property owners’ rights. While HOA laws vary significantly at the state and local levels, there are some federal laws that apply, and there are general legal principles that apply in most jurisdictions as well.

These 10 Types of HOA Rules are Generally Prohibited

So, what types of rules can’t a homeowners’ association enforce? Here are 10 examples of HOA rules that may break the law:

  1. Rules that Are Discriminatory in Nature
    Homeowners’ associations cannot adopt rules that are discriminatory in nature. State and federal laws prohibit HOAs from discriminating on the basis of race, ethnicity, gender, family status and various other protected characteristics. Obvious examples would include adopting rules that provide disparate treatment to African Americans or same-sex couples, but much more subtle forms of discrimination have been found to violate homeowners’ rights as well.
  2. Rules that Are Discriminatory in Practice or Application
    Even if an HOA rule is not discriminatory on its face, it can still be illegal if it has a discriminatory impact. This can either result from practical circumstances (i.e. adopting different rules for different sections of a neighborhood with different demographics), or from discriminatory application (i.e. enforcing a non-facially-discriminatory rule in a discriminatory way). HOAs cannot avoid liability for discrimination simply by writing rules that are facially neutral. If there is a discriminatory purpose behind a facially-neutral rule, the rule is illegal.
  3. Rules that Violate the Freedom to Display the American Flag Act
    The Freedom to Display the American Flag Act is a federal law that Congress enacted in 2005. Under this law, an HOA may not, “adopt or enforce any policy, or enter into any agreement, that would restrict or prevent an association member from displaying the U.S. flag on residential property within the association with respect to which such member has a separate ownership interest or a right to exclusive possession or use.” However, the law does not prevent an HOA from imposing, “any reasonable restriction pertaining to the time, place, or manner of displaying the flag necessary to protect a substantial interest of the . . . association.” For example, if an American flag’s placement obstructs drivers’ view at an intersection, the HOA may have the authority to prohibit the specific placement. Some states have enacted laws that make it illegal for HOAs to prohibit the display of certain other flags as well. Examples (in varying jurisdictions) include state flags, U.S. armed forces flags and flags of Indigenous American tribes.
  4. Rules that Violate the Telecommunications Act of 1996
    The federal Telecommunications Act of 1996 restricts the ability of homeowners’ associations to adopt rules regarding the placement of satellite dishes and other communication devices on residents’ private property. Although these restrictions are becoming less relevant this day in age, they can still come into play in various circumstances. The Federal Trade Commission’s Over-the-Air Reception Devices Rule also prohibits HOAs from adopting rules that, “(1) unreasonably delays or prevents use of; (2) unreasonably increases the cost of; or (3) precludes a person from receiving or transmitting an acceptable quality signal from an antenna covered under the rule.”While the Telecommunications Act of 1996 and Over-the-Air Reception Devices Rule are fairly restrictive for homeowners’ associations, they do not prohibit HOAs from addressing concerns related to satellite dishes and other communication devices entirely. For example, within limits, HOAs can restrict the size and location of satellite dishes and other communication devices placed on private property, and they can prohibit the placement of these devices in common areas or in areas where their placement would interfere with historical preservation efforts.
  5. Rules that Violate Fair Housing Laws
    State and federal fair housing laws prohibit HOAs from engaging in discriminatory practices that negatively impact individuals’ access to homes or their rights within a particular community. These laws commonly prohibit housing-related discrimination on the basis of race, color, national origin, sex, religion, familial status and disability—among other protected characteristics. We have covered rules that violate fair housing laws separately from rules that are generally discriminatory because the enforcement mechanisms under these laws are different in many cases. In addition to civil litigation, HOAs that violate fair housing laws can also face enforcement action from the U.S. Department of Housing and Urban Development (HUD) and its state counterparts.
  6. Rules that Violate State or Local Laws or Ordinances
    Several states and municipalities have adopted laws and ordinances that restrict the types of rules local HOAs can impose. When drafting an HOA’s covenants, conditions and restrictions, it is imperative to identify and review all pertinent sources of legal authority. Frequently, HOAs will fail to address unique state-level or local requirements; and, in doing so, they will expose themselves to litigation risks as a result of adopting or attempting to enforce unlawful rules or restrictions.
  7. Rules that Impair Homeowners’ Property Rights
    A common source of litigation between HOAs and homeowners is HOA rules that impair homeowners’ property rights. The Takings Clause of the Fifth Amendment and various other laws and regulations protect homeowners against both government and private actions that either deprive them of or restrict their ability to use their property. For HOAs, there is a fine line to be drawn. Clearly, HOAs can adopt rules that restrict homeowners’ ability to use, and even profit from, their property. But, there is also a huge body of case law that has arisen out of HOAs attempting to take their authority too far. Granting access to homeowners’ property, attempting to place community assets on homeowners’ property, and adopting rules that deprive homeowners of property value are just a few examples of issues that can (and often do) lead to disputes.
  8. Rules that Violate Homeowners’ Free Speech Rights
    Disputes also frequently arise in relation to HOA rules which homeowners claim violate their freedom of speech. While the First Amendment does not apply to HOAs, state laws protecting free speech and HOA covenants establishing homeowners’ rights do. When adopting rules regarding things like flags, political signs and holiday decorations, HOAs cannot infringe upon homeowners’ rights of free speech. Rules that violate these rights are unenforceable, and they can (and often will) lead to costly litigation.
  9. Rules that Promote or Facilitate Fraud
    Homeowners’ associations cannot adopt rules that promote or facilitate fraud. Disputes regarding budgeting, accounting practices and transparency are common, and any indication of potential financial impropriety is almost certain to lead to issues with the community’s homeowners sooner or later.
  10. Rules that Promote or Facilitate Selective Enforcement
    Finally, HOAs cannot adopt rules that promote or facilitate selective enforcement. This applies not only with regard to discriminatory enforcement, but also with regard to enforcement that disproportionately targets individual homeowners for other reasons—whether personal vendettas, individual board members’ personal preferences, or a house’s proximity to a board member’s residence.

Ensure that Your HOA’s Rules Don’t Break the Law

With this (non-exclusive) list of potentially unlawful HOA rules in mind, how can homeowners’ associations ensure that their rules don’t break the law? Here are five best practices that developers, property managers and HOA boards should keep in mind:

  • Review Your State’s HOA Laws (if Any) – Developers and HOA managers should ensure that they thoroughly review all pertinent state and local laws. This includes, but is not necessarily limited to, laws that apply specifically to HOAs.
  • Review Your HOA’s Governing Documents – Before adopting new rules, HOAs should review their governing documents to ensure that the rules they intend to adopt are permitted.
  • Focus on Rules that Preserve the Look, Feel and Property Values of the Neighborhood – Generally speaking, HOA rules should serve the purpose of preserving the look, feel and property values of the neighborhood. Proposed rules that serve any other purpose, whether overtly or in their application, should be examined carefully.
  • Emphasize Clarity, Conciseness and Consistency – Homeowners’ associations should ensure that their rules are clear, concise and easy to understand. HOAs should also ensure that their rules are consistent (i.e. do not create conflicting obligations) and are capable of being consistently enforced.

Have a Valid and Specific Purpose for Each Condition, Covenant and Restriction – Homeowners’ associations should not adopt rules simply for the sake of adopting rules, nor should they rely on “cookie-cutter” HOA documents. If a particular rule does not serve a valid and specific purpose within a particular community, then adopting the rule may simply create unnecessary trouble.