This blog series – Are Homeowner and Condo Associations “Mini-Governments?”– will compare the typical governance structure of HOAs (using the term generically) to our local governments, as guided by the principles of our Constitutional Republic.
Part IV. Key differences between Homeowners’ or Condo Associations and Local Governments in America: HOA Rules are more restrictive
- HOA rules are more restrictive than local government.
So, how do CC&Rs and Board-enacted Rules and Regulations compare to local ordinances and codes?
CC&Rs vary by Association, of course, but they can be quite restrictive and involve relatively minor violations such as putting a political sign in your yard, having a brown spot in the lawn, or decorating with multi-color holiday lights instead of white lights.(1) Architectural requirements might limit your choice of paint colors for the exterior of your house, whether or not you can put up a fence, and even the specific type of mailbox that must be installed. In other words, most HOA rules exist to maintain a uniform or “show-ready” neat appearance. I like to refer to these as Keeping Uniform Appearances, or KUA rules.
CC&Rs are almost always created by the Developer, and not the future owners or residents. The Board often enacts related rules, but there is no legal requirement to obtain input from residents at an open meeting.
Owners can challenge the CC&Rs, although courts are often reluctant to interfere. The courts tend to consider CC&Rs and Board-enacted rules a private agreement or “contractual” matter. Recently, both New Jersey and Texas Courts have upheld First Amendment rights for owners in HOAs invalidating the applicable Restrictive Covenants.(2),(3) Challenges to these CC&Rs involved lengthy battles in civil court.
By contrast, local government codes and ordinances must be created with an opportunity for public input. Even in “home rule” states, all locally enacted laws must comply with state and federal Constitutions. There must be a compelling reason for enacting restrictions for use of private or public property, generally to protect health, safety, and welfare of the general public. If the local government overreaches with a particular ordinance, public objection and challenge on Constitutional grounds will generally lead to a repeal of the restriction. For example, in 2014, when Ocala, FL, City Council passed an ordinance against wearing pants below the waist, subject to fine and imprisonment, public outcry led to a swift repeal. (4)
1 Bucks County (PA) woman fined by Homeowners’ Association for colored Christmas lights, CBS Philly, Dec 2, 2011
2 N.J. Supreme Court: Fort Lee co-op board violated man’s free-speech rights in leafletting case, NorthJersey.com, Dec 3, 2014
3 HOA’s case against Dallas Congregation tossed, CBS-DFW, Feb 4, 2015
4 Florida City Repeals Saggy Pants Ordinance After Legal Threats From NAACP, CBS Tampa Bay, Sept 17, 2014
Next: Part 5, Landlord and tenant rights are diluted in an HOA