By Deborah Goonan, Independent American Communities firstname.lastname@example.org
Updated 1/18/2023 2:00 PM ET
IAC welcomes 2023 by presenting this annual summary of notable HOA laws enacted in the in 2022 legislative sessions. This post also includes a few summaries of other notable HOA-related bills that have been introduced but did not pass in 2022.
SB143 became law, effective Oct 6, 2022. The Republican-sponsored HOA legislation amends state law with respect to condominium associations and common interest community associations created on or after Jan 1, 1986. To obtain mortgagee/lender lienholder consent to an amendment to the governing documents, the HOA must send a written notice to the lienholder stating their intent to amend the governing documents of the HOA, asking for consent within 60 days of the date of the postmark of the written notice. If the lienholder fails to respond within the 60-day timeframe, consent is assumed by default.
HOA legislation in Arizona now allows residents of HOA-governed communities to fly a wider variety of flags on their private property, thanks to House bill 2010. The HOA bill was sponsored by Republican Rep. John Kavanagh, was signed by Governor Ducey in June. State law now requires HOAs to allow residents to display flags that honor or commemorate first responders, including police officers, firefighters, paramedics and EMTs.
HOAs maintain limited control over flag displays. According to statute, “The association shall adopt reasonable rules and regulations regarding the placement and manner of display” of flags that cannot be prohibited by law.
Another landmark bill for free speech rights, HB 2158, also introduced by Rep. Kavanagh, was enacted this year. Arizona laws now requires HOAs to allow political signs on private property, with some minor stipulations. See this previous IAC post for full details.
New HOA laws in California are aimed at making life easier for owners of Electric Vehicles. AB-1738 (Boerner Horvath) Building standards: installation of electric vehicle charging stations: existing buildings. This law authorizes the Department of Housing and Community Development to research, study, and propose amendments to mandatory building codes related to the installation of electric vehicle charging stations in multifamily housing, hotels, motels, and non residential developments. This includes condominium and cooperative associations governed by HOAs.
California’s Governor, Gavin Newsom, also recently signed a bill that makes it easier for homeowners to add additional living units on their lot or attached to their home, including properties within HOA-governed communities. SB-897 (Wieckowski) Accessory dwelling units: junior accessory dwelling units is now state law. See Chapter 664.
Chapter 858 of California law now incorporates AB-1410 (Rodriguez) Associations: declared emergency: protected uses. The recent amendments to CA statute offer three additional protections for homeowners in HOA-governed communities.
- Relief from HOA violations during a declared state of emergency
- HOAs cannot prohibit critical remarks posted on social media
- Owner-occupants have the right to rent part of their home to a roommate
Governor Jared Polis signed 4 HOA-related bills, creating new laws affecting HOA-governed communities this year.
Last June, after months of contentious debates in the state Legislature, Colorado Governor Jared Polis signed a bill (HB22-1137), adding new regulation of the HOA foreclosure process.
The new Act amends the Colorado Common Interest Ownership Act (CCIOA) by adding several new consumer protections for owners of homes in condominium and homeowner association governed communities. In a previous IAC post, I summarized the key features of the new Act.
HB22-1287 is an Act that provides protection for mobile home owners, most of whom own their homes, but rent the land beneath their homes. The Act makes new requirements for landlords to:
- provide owners with advance notice (180 days) of intent to sell the mobile home park to a third party buyer,
- pay for repairs and damages to mobile homes, which are due to the park owner’s neglect or failure to maintain park property, and
- empowers the Attorney General to investigate complaints and enforce the law pertaining to a landlord’s responsibilities.
HB 22-1139 amends the Colorado Common Interest Owners Act (CCIOA), to prohibit associations from regulating use of any public rights-of-ways running through their communities. This prohibition holds true regardless of anything associations may have written in their governing documents. Association-governed boards may no longer attempt to regulate parking, vehicle storage, or other uses of public rights-of-ways, including public streets or roads that run through HOA-governed property.
HB22-1040 Home Owners’ Reasonable Access To Common Areas, requires HOA-governed communities to minimize closure of common elements or amenities, except for necessary maintenance or repair. HOAs must provide adequate advance written notice and prominently post notice of any closure of a portion of the common elements or amenities, for the purposes of repair or renovation. The notice must provide a contact phone number for residents to inquire about the temporary closure.
One important CO bill did not become law: House Bill 1387, sponsored by Reps. Brianna Titone, D-Arvada and Mary Bradfield, R-Colorado Springs; and Sens. Rhonda Fields, D-Aurora and Kevin Priola, R-Henderson, on homeowners’ associations.
This bill set forth amended requirements for reserve studies and full funding of reserves for all common property serving two or more housing units, applicable to three types of HOA-governed common interest communities: condominiums, co-ops, and planned communities. It passed both chambers of the Legislature, only to be vetoed by Governor Jared Polis.
Gov. Polis vetoed the bill, because, he said, it would result in much higher fees for homeowners at a time when many are already struggling with inflation. Gov. Polis favored the improved consumer disclosure requirements in the bill, and encouraged lawmakers to “try again” next year. Read more about this bill in my previous IAC post.
Governor Ron Desantis signed several important bills that became new HOA laws in 2022.
SB 4D and SB 2D. SB 4D makes bold new requirements for building safety inspections, and funding of condominium reserves. Applies to residential buildings of 3 or more stories. SB 2D provided a $2 billion reinsurance stopgap for home insurance providers. For details, see previous IAC post – FL Governor signs condo safety, insurance bills passed in special session.
NOTE: in the wake of Hurricane Ian’s destruction of late September, Gov. Desantis called another special session in December 2022, to address the insurance crisis.
CS/SB 518: Private Property Rights to Prune, Trim, and Remove Trees, which provides that the owner of a single family home retains the right to prune, trim, or remove any tree on private property which poses a safety risk. The owner seeking to remove a tree must provide documentation of such risk from a licensed landscape architect or arborist.
CS/SB 438: United States Space Force, is an Act that acknowledges the addition of the Space Force as a branch of the U.S. Military. Pertaining to condo and planned communities governed by HOAs, this law states that an HOA cannot prohibit a homeowner’s display of a Space Force flag on their private property.
CS/SB 1380: Real Property Rights (Republican bill sponsor, Rodriguez)
Amends statute 715 to allow private property owners (including HOAs) to establish parking rules and restrictions, and to allow them to issue parking tickets. (See quote below)
CS/SB 1380 also enacts fixes to prevent expiration of covenants and restrictions under statute 712, MARKETABLE RECORD TITLES TO REAL PROPERTY. Generally, if the covenants and restrictions were properly recorded, and the deed reflects the book and page number, they cannot be automatically extinguished. Also, if the community was established by local government, as being subject to said restrictions, they cannot be automatically extinguished.
715.075 Vehicles parked on private property; rules and
(1) The owner or operator of a private property used for
motor vehicle parking may establish rules and rates that govern
private persons parking motor vehicles on such private property.
Such rules and rates may include parking charges for violating
the property owner’s or operator’s rules and must be posted and
clearly visible to persons parking motor vehicles on such
private property. An invoice for parking charges issued under
this section must include the following statement in uppercase
THIS INVOICE IS PRIVATELY ISSUED, IS NOT ISSUED BY A
GOVERNMENTAL AUTHORITY, AND IS NOT SUBJECT TO CRIMINAL
(2) A county or municipality may not enact an ordinance or a regulation restricting or prohibiting a right of a private property owner or operator established under subsection (1). Any such ordinance or regulation is a violation of this section and is null and void.
Two notable HOA bills, aimed at making condominiums safer places to live, didn’t progress in the 2022.
SB-488 SD1, a legislative proposal to require fire sprinklers in single-family homes and duplexes, was introduced in 2022. The bill passed the Senate, but stalled in the state Assembly, where it was removed from further consideration.
Another bill that did not become law: House Bill 1784, Relating to Building Inspections. Official summary, ”Requires periodic inspections of certain walls and appurtenances of buildings five or more stories in height.” The bill was sponsored by Representative Aaron Johanson [D], Representative Della au Belatti [D], Representative Linda Ichiyama [D], Representative Scott Nishimoto [D], Representative Adrian Tam [D], in response to calls for measures to prevent another tragic building collapse, like the one in Surfside, Florida, in June 2021.
Although this bill passed in the House, it died in Senate committee, where the effective date of the bill was changed to Jan. 1, 2050, “to encourage further discussion.” See also, this previous IAC post.
Idaho has a brand new HOA law as of 2022. Previous to last year, Idaho had no comprehensive statute for common interest developments governed by HOAs. Due to recent explosive growth in Boise and surrounding areas in recent years, most of which are HOA-governed, legislators introduced bill ID HB703 Homeowner’s Association Act. By definition, this Act includes all common interests and common ownership communities, such as condominiums as well as planned communities.
The bill was overwhelmingly supported by state Legislators, was signed into law by Governor Brad Little last spring, and became law in July 2022.
The HOA Act includes several provisions, intended to protect the rights of homeowners:
- Requirements for open meetings of the HOA board, with rare exceptions, and states that an HOA must hold at least one meeting per year.
- HOAs are required to take minutes for each meeting, and take care to preserve those minutes.
- Prohibits HOAs from “expanding” restrictions governing common property to create additional rules governing private property.
- A majority of all homeowners must vote to approve HOA fees increases.
- If the Association violates these provisions, and a homeowner prevails in court, the owner is entitled to recover attorney fees.
With regard to fines, an HOA’s powers are limited by its covenants and restrictions. If the CC&Rs do not allow the HOA to impose fines for a particular violation, then the HOA is prohibited from imposing fines. The HOA must provide a 30-day advance written notice, by certified mail, of a covenant violation, prior to the board voting to impose fines. The Act states that board members for management agents may not obtain personal profit from fines collected. The HOA can collect attorney fees related to collections, but only if it follows the advance notice and board vote procedure, and it must first allow the owner time to demonstrate a good faith effort to cure the violation. A court may determine the reasonableness of attorney’s fees, with the intent of preventing excessive legal fees related to collection of HOA fines.
Pertaining to HOA liens for unpaid maintenance assessments, the HOA must provide notice of lien to the property owner by either personal service or certified mail, within 5 days of filing the lien. The Act gives the board the authority to “enforce the lien” by money judgment or foreclosure. Other than the advance notice requirements, the law remains silent on further limitations of the HOA’s enforcement powers. It also allows the lien to accumulate as long as any portion of HOA fees remain unpaid.
The HOA Act offers limited protection of rights for homeowners to install solar panels on their roofs, as long as the roof is not common property. Owners are also permitted by law to display certain flags and political signs. In addition to the U.S. and state of Idaho flags, an owner can display flags of the U.S. Armed Forces, as well as POW/MIA flags. However, use of flags, and political signs remain subject to HOA limitations on size, location, and number. Some allowable regulations on installation of rooftop solar panels also apply.
With regard to rental restrictions, state law prohibits an association from enforcing any addition or amendment to any covenant, condition, or restriction against any owner that has not expressly agreed to such restrictions at the time the owner acquired the property.
On May 27, 2022, Illinois Governor, JB Pritzker signed a bill, HB5246, amending section 22.1 of the ICPA. The new HOA law became effective on January 1, 2023. The law pertains only to condominium associations, and amends resale disclosure requirements.
A condo buyer is now entitled to receive a copy of the governing documents, to include Covenants and Restrictions, as well as Bylaws, rules and regulations, and other related information. Resale disclosure packets must also include the following, as applicable:
- Statement of lien on the property, with a full accounting of amounts due.
- A statement of any capital expenditures anticipated by the condo association within the next two fiscal years.
- A copy of the reserve fund statement, noting any particular upcoming construction projects.
- A statement noting any pending lawsuits to which the condo association is a party.
- A written list of any improvements or alterations to the condo unit, which are in compliance with HOA documents.
- A statement of condo insurance policies and coverage.
- The identity and mailing address of the principal officer of agent of the condo association.
The condo association’s fee for this disclosure packet cannot exceed $375, however, this fee limit can increase each year, automatically, in relation to the Consumer Price Index.
Notably, the law includes an obligation for consumers as well. If a condo buyer purchases the unit with a mortgage, that owner is required to provide the condo association with the name and address of the mortgage lender within 15 days of recording the deed to the property.
As of October 1, 2022, Maryland made it mandatory for all HOA-governed communities to complete an updated reserve study every five years. The new HOA law originated from HB-107 (Cooperative Housing Corporations, Condominiums, and Homeowners Associations – Reserve Studies – Statewide.) State law requires all residential HOA-governed communities, regardless of type or size, to complete their first reserve study no later than October 1, 2023. Previously, the requirement to monitor HOA reserves was limited to communities in only Montgomery and Prince George Counties.
A few important points: (read the details here)
- State law requires that the professional preparing the reserve study “Holds a current license from the State Board of Architects or the
- State Board for Professional Engineers;” or is “designated as a reserve specialist by the Community Association Institute or as a professional reserve analyst by the Association of Professional Reserve Analysts.”
- Members of each HOA-governed community are now required by law to fund the reserves, per the recommendations of professionals. In the case of an initial reserve study, owners have three years to catch up, or phase in, full funding of reserves.
- Property owners are entitled to receive a copy of any Reserve Study, and the Association must use the information to prepare each year’s annual budget.
- HOA subdivisions with minimal common property (valued at less than $10,000 at the time of construction), are exempt from this law.
See this previous IAC post for additional information.
In a victory for homeowner rights, and the well-being of birds, butterflies and bees, Legislators overwhelmingly supported House Bill 322, a low-impact landscaping bill that gives homeowners the right to plant wildlife-friendly, no-pesticide gardens, regardless of any HOA restrictions to the contrary.
You can read the backstory behind this bill, which began when one homeowner faced bullying tactics by her HOA, for daring to plant a bird and butterfly-friendly garden in her yard. While most neighbors admired the garden, one particular neighbor complained to the HOA, prompting a barrage of bully tactics from the HOA’s law firm, costing the Association more than $100,000 in legal fees.
According to supporters, even trade group Community Associations Institute supported this bill. That’s probably because the bill contains the usual obligatory language that allows the HOA to impose “reasonable design and aesthetic guidelines regarding the type, number, and location of low-impact landscaping features.”
What this means is that, as currently written, the law doesn’t strictly guarantee than an HOA will happily allow an owner to install a low-impact landscape, without first requiring that owner to jump through various HOA procedural hoops to obtain approval. The law also allows the HOA to require that the landscape be well-maintained, and there’s sure to be disagreements over how much tending a wildlife garden truly needs. Still, the legislation is a step in the right direction.
Sometimes a new HOA law gets added to a larger bill on a different topic. That’s what happened in 2022, with Senate Bill 820, sponsored by Sen. Eric Burlison, (R-Battlefield). It is a utilities and renewable energy bill that includes important provisions pertaining to installation of solar panels in HOA-governed communities. The law was signed by Gov. Maike Parsons last year, and became effective January 1, 2023. State law now makes illegal any “deed restrictions, covenants or similar binding agreements” that prohibit homeowners from installing solar panels on their roof. Homeowners’ associations can “adopt reasonable rules” about panel placement, but cannot prevent them from being installed, or enforce restrictions that increase the cost of installation or operation. (See legislative summary.)
A new HOA law applies to all common-interest communities, including townhouse and condominium associations of 150 or more units. All HOAs must now provide a website for their association members. As of January 1, 2023, the Association’s website is required to provide online access to meeting agendas, minutes, the annual budget, and governing documents. Also, as of January 1, 2023, Association websites must include a portal where owners may pay their HOA fees electronically. See SB186 Overview (state.nv.us), Chapter 549. (Note, other sections of SB186 became effective in 2021 and 2022. Legislators gave HOAs two years to prepare their websites.)
Here’s a great HOA bill that, unfortunately, didn’t become law in 2022. Seven state Legislators (6 Republicans and 1 Democrat) introduced a bill that was intended to undo the effects of double taxation of homeowners in HOA-governed communities. SB 250, Enabling municipalities to adopt a tax credit for qualified private community property owners, would have enabled owners of property in private communities to file for a tax credit for services provided by their HOA, that would otherwise be provided by a municipality.
Services that would be eligible for a tax credit include repair and replacement of roads and streets; supply of electricity for streetlights in the community; maintenance, repair and replacement of public water and sewer utility lines; snow, ice and debris removal from roads; and removal of solid waste, as well as collection of recyclables and leaves from the community.
Many owners of property pay fees to their HOA for these services, while also paying property and local taxes to fund comparable public services for homes in the municipality that are not managed or governed by HOAs.
Unfortunately, the bill failed to progress in the 2022 Legislative Session.
An amendment to the NH non-profit corporation law has resulted in new law affecting HOAs. In January of last year (2022), the Legislature enacted A5549, which Permits nonprofit corporations to allow members to participate in meetings by means of remote communication. The bill was introduced in 2020, at the height of COVID-19 emergency declaration, that moved most meeting of corporate non-profits (including condo, co-op, and homeowners’ associations) online. State law makes remote meetings legal, even in the absence of an emergency declaration.
Also, as of January 2022, Governor Murphy signed into law S396. State law is now clear that the Ten-year Statute of Limitations for filing construction defect claims against a developer does not begin until a majority of the condo or HOA board is elected by unit owners. The law finally recognizes that a developer-controlled board is not likely to sue itself over faulty construction and poor workmanship.
Legislators considered two notable bills in 2022, that would have provided additional protections for condo owners and residents. Unfortunately, both bills died early in the session.
In response to the 2021 collapse of a condo building in Surfside, FL, a bipartisan effort was made to require building safety inspections for condos structures that are 40 or more years old. Bill S4103 / S580 proposed assigning the duty to conduct initial building safety inspections of major structural elements, then repeat them every five years, to the Commissioner of the Department of Community Affairs. Condominium Associations found to have structural issues would have been given 150 days to address pressing problems.
For more details, see this previous IAC post.
Bill A1075, introduced by Assemblyman Gary S. Schaer, intended to require commercial liability insurance policies (typically held by developers of condominiums) to include coverage for damages due to faulty workmanship. For example, if a subcontractor’s work results in leaky windows, leading to structural damages and need for repair, the commercial liability policy would cover the cost, so that condo owners would not have to pick up the financial burden. The bill was introduced shortly after a court ruled in favor of condo owners that experienced damage to their building due to faulty workmanship that resulted in chronic water seepage.
Two new HOA bills were created by NC-LAC (CAI) in the 2021-2022 session, and enacted as law, in response to court decisions that, in the opinion of HOA attorneys, threatened the authority of HOAs in older communities.
Senate Bill 336 and SB278 Marketable Title Act (MTA) provisions both went into effect as of July 1, 2022. The law now makes it practically impossible for underlying covenants and restrictions creating a common interest community to expire, due to MRTA provisions.
Older HOA community governing documents frequently stated that Covenants and Restrictions (CCURs) would expire 30 or 40 years after creation of the property, unless property owners collectively voted to renew the CC&Rs. If the documents were not renewed, older homes in the subdivision would, one by one, reach their deed restriction expiration dates. When deed restrictions expire, the HOA no longer has legal authority to collect fees and dues from owners.
It’s no surprise that the management industry trade group lobbied for these laws, as they have done in several other states with MTAs that might have allowed HOA restrictions and fee collection authority to expire.
This Source link offers more details on the court decisions related to this legislation: NC Community Association Legislative Update – June 21, 2022
As of September 13, 2022, Ohio has a new consolidated HOA law that governs both condominiums and planned communities. The bill was signed by Govern DeWine last summer. SB 61 Regards condos, planned communities, and the New Community Law
Read SB-61 as enrolled
Notably, in Section 5311.081, the law still allows a majority vote of unit owners to waive requirements to fully fund reserves for future repair and replacement of common elements and improvement to common property. Additionally, an Association’s governing documents can still require a vote of owners to approve each annual budget increase.
Curiously, home and condo owners are to be granted access to records, with some exceptions, but only if the requested records are 5 years old or less. The board of directors must vote on allowing an owner to view and copy records older than 5 years.
All Associations are now required to obtain and maintain Crime, Fidelity, and Dishonesty insurance, to protect the owners’ collective liability for loss due to theft, embezzlement, or fraudulent acts of directors, management, or other agents with access to HOA funds.
If not prohibited in the Association’s governing documents, the law permits homeowners to install solar energy collection equipment on their privately-owned property only, subject to HOA limitation on size, manner of placement, and location of devices. (Sec. 5311.192)
The law authorizes the use of electronic means of communication, such as email and posting information on the association’s website.
An important HOA law became effective in 2022. HB 1795, known as Act 115, is comprehensive legislation with both Pros and Cons. I see it as a mixed bag of consumer protections and provisions that are not helpful to homeowners. Among other things, it creates new requirements for HOA elections and HOA bylaw amendment procedures.
Please refer to my previous IAC post. Update: PA HB1795 is now law, where I have a detailed explanation of the bill.
Thanks to a new HOA law, effective May 2022, condominium and homeowners in HOA-governed communities will enjoy a limited expansion of property rights, thanks to several new provisions in Chapter 439, arising out of SB 152.
With regard to display of holiday decorations or religious symbols, for sale signs, and political signs, HOAs can no longer prohibit display on private lots, or inside condo units. However, an Association may still adopt reasonable restrictions regarding time, place, and manner of display.
State law also advances a number of environmental protection policies, which will allow homeowners to save water and energy.
Condo and homeowner associations are now required to adopt a water-efficient landscaping policy, and must allow the conversion of a grass park strip to a more environmentally friendly landscape. Typically, a grass park strip is the area between the sidewalk and the curb, often maintained by individual homeowners.
Owners of property in an HOA-governed community may also install an electric vehicle (EV) charging station, on their own private property, or in a limited common parking area or assigned parking space. Owners must obtain all necessary permits, and pay all costs associated with installation, use, and maintenance of the EV charging station. The HOA retains limited authority to enact reasonable aesthetic requirements for the installation, use and ongoing maintenance, so long as those requirements do not interfere with efficient operation of the EV equipment.
Likewise, owners of detached or attached homes now have the right to install solar energy equipment on their private property (such as a roof), provided that the HOA does not maintain exterior surfaces or areas where the solar equipment is proposed to be installed. Solar installations may still be prohibited on common property.
Finally, condo and homeowner associations are now explicitly required by law to maintain a copy, and provide access for owners to, the governing documents, all insurance policies held by the association, and reserve studies.
A 2022 HOA bill, SB 740, was introduced by Scott A. Surovell in 2022. This bill establishes a formal work group to study HOA-governed communities. It easily passed both chambers of Legislature and was signed into law by Governor Glenn Youngkin in April 2022. Under the terms of the SB740, the state will study the need for new legal standards for structural integrity of commonly-owned property in HOA-governed communities, as well as the proper level of funding of reserves for capital improvement projects.
See previous IAC post for full details.
FEDERAL Bills introduced by HOA-industry
HOA industry group, Community Associations Institute (CAI) drafted two federal bills, in an attempt to obtain federal financing to help condo owners pay for special assessments, which are now needed in many aging condominium and cooperative associations, to address long-delayed repairs.
The first bill, H.R.7532 – Securing Access to Financing for Exterior Repairs in Condos Act of 2022 would allow condo owners to refinance their mortgage through FHA, to include the amount of a special assessment needed for essential repairs.
According to CAI, the second federal bill, HR 8304 – Rapid Financing for Critical Condo Repairs Act of 2022, proposes that “the U.S. Department of Housing and Urban Development’s Federal Housing Administration would insure loans for building repairs.”
In a previous post, I explain why I think that forcing condo owners to take on new debt in the form of a federally insured loan, to pay mandatory HOA special assessments, is a bad idea. Both bills were introduced by Reps. Charlie Crist (D-Fla.) and Debbie Wasserman Schultz (D-Fla.). Thankfully, so far, neither bill has garnered any interest in Congress.
Also, in March 2022, CAI made a formal written request to FHFA, asking for a 1-year delay in implementation of Fannie Mae and Freddie Mac’s updated lender questionnaires. Mortgage lenders use the new questionnaires to document a condo association’s physical and fiscal health. CAI complains that condo buyers are unable to obtain mortgages for units in condominium associations that have not answered the lender questionnaires.
See also, the IAC post entitled Opinion: FHFA should not allow Condo HOA industry to influence building safety.