Can homeowners get rid of unreasonable, unconstitutional HOA rules?

February 2023 IAC HOA News Digest: Condo, HOA living is getting a lot more expensive

By Deborah Goonan, Independent American Communities deborahgoonan@gmail.com

In this post, IAC summarizes the problem of unreasonable or unconstitutional HOA rules. It also explores solutions, explaining what homeowners can do to get rid of them.

The post begins by explaining the source of the problem of unreasonable or unconstitutional HOA rules: Covenants and Restrictions.

The Problem: Unreasonable or unconstitutional HOA rules

HOAs come with all sorts of rules and restrictions, right? That’s common knowledge. But did you know that a legal document attached to your home’s deed creates your HOA? U.S. state laws view HOA “rules” as a contract between and among homeowners and their HOA. Legal experts call this document the Covenants, Conditions, and Restrictions (CC&Rs). Some HOA attorneys use the terms Declaration of Covenants or Declaration of Condominium.

Most homeowners don’t know that private restrictions on the use of property have been around for more than a century. CC&Rs were fairly common long before the real estate industry insited it was necessary to create an owners’ association. In fact, pre-1970s “deed restrictions” relied on a more democratic mutual enforcement system.

Any individual property owner could sue any other owner in court. State and local courts could hear arguments from both parties. A judge or jury decided neighbor disputes. In other words, a neutral third party would evaluate the complaint against the CC&Rs contract, and decide if and how to enforce the law.

Today it is uncommon to find a home that is subject to deed restrictions, but NOT part of an HOA.

Unfortunately, a growing majority of single-family properties – both detached homes and attached townhouses — come with an HOA to enforce restrictions without intervention of the courts. And, in the case of condominiums or housing cooperatives, an owners’ association enforces the rules for residents of multifamily buildings and common areas.

(Note: For the remainder of this article, I’ll sometimes refer to Covenants and Restrictions as “rules.”)

HOA rules can be unreasonable

There’s no shortage of articles and reports on unreasonable HOA rules.

Single family homeowners often complain about HOA rules that require frequent mowing, trimming, edging, watering, and weed control of lawns. Most people don’t object to taking reasonable care of their lawn. But it gets truly out of hand when, for example, the HOA starts measuring the length of grass, to be sure it doesn’t exceed 3 inches.

In some neighborhoods, HOAs cite owners for rule violations for silly or petty things such as:

• “Unsightly” children’s playground equipment, basketball hoops, bikes or toys left out in the yard, visible to anyone passing by
• Putting trash cans on the curb “too early” or leaving them at the curb too long after trash collection
• Parking vehicles in the driveway or on the road in front of one’s house, instead of parking in the garage with the door closed
• Using “unapproved” colors or materials for siding, trim, deck paint, roofing materials
• Having a dusty or dirty mailbox, or one that is not uniform in appearance

For townhouse or condominium residential housing, other petty rules might include:

• Restrictions on the type of potted plants displayed near front doors, decks, patios, or balconies
• Limitations on the kinds of window coverings allowed, requiring all window coverings to be the same, and in a neutral color
• Rules about the type, size and color of doormats allowed
• Parking restrictions that don’t accommodate larger passenger vehicles or work vans that are essential to some families
• Arbitrary pet restrictions, such as weight limits for dogs allowed

Owners object to unconstitutional HOA rules

The biggest controversies over the rules happen when HOAs limit First Amendment rights — Freedom of Speech, Freedom of the Press, Freedom of Assembly, Freedom of Redress, and Freedom of Religion.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

U.S. Constitution, First Amendment

In the context of HOAs, owners don’t like it when HOAs make and enforce rules to prevent residents from displaying flags, political campaign signs, or religious decorations. Owners and residents also hate when HOAs don’t allow owners to speak freely with their neighbors, or to address the board with concerns and complaints about HOA decisions. Some HOAs use their attorney to write “cease and desist” letters, threatening to fine or sue owners who refuse to take down HOA websites or social media comments critical of HOA board members or management.

Why is it so hard to get rid of unreasonable, unconstitutional HOA rules?

HOA-industry lawyers often insist that your Constitutional rights don’t apply in HOAs, because HOAs are private organizations, not government. The truth is this is simply a prevailing legal opinion of HOA attorneys affiliated with the US/multinational trade group Community Associations Institute (CAI). An opinion that, of course, benefits law firms who represent HOAs.

These are the very same attorneys that establish CAI Public Policies. State level CAI Legislative Action Committees (LACs) craft legislation that enables HOA enforcement of unreasonable or unconstitutional HOA rules. Likewise, CAI LACs oppose bills that limit the rights of HOAs to set “reasonable restrictions” on homeowner rights, including constitutional rights.

Is it true that homeowners give up their Constitutional rights in HOA communities?

No, it’s not true!

Think about it. If were the truly case that federal and state Constitutions never apply to HOAs, then HOAs would be able to freely violate –without penalty — the Fair Housing Act (1968), a constitutional law that prohibits housing discrimination on the basis of race, color, national origin, religion, sex (including gender identity and sexual orientation), familial status, or disability. Although the investigation process that follows a complaint of housing discrimination can be slow, many HOAs have been held accountable by HUD’s Fair Housing Administration.

Here are some facts. Civil penalties for violations of the Fair Housing Act start at about $20,000 and can reach nearly $100,000. If the HOA is found guilty of violating the law, it will likely have to pay the attorney fees of the aggrieved homeowner or resident. And HOA board members or managers can be held individually responsible for their discriminatory behavior. (Refer to this useful resource for more information)

Also, in recent years, IAC has documented several successful homeowner legal challenges of HOAs on First Amendment issues. (You can read about them here.) Unfortunately, many of these unreasonable, unconstitutional HOA rules go unchallenged.

The reason HOAs continue to enforce questionable rules is because an owner who fights back against their HOA must often get an attorney and spend thousands, or even tens of thousands of dollars in legal fees, in the quest for justice.

Solutions: How to get rid of unreasonable, unconstitutional HOA rules

Legislative reform, with strong regulations and strict enforcement

Yes, it’s true that, in the past decade, most states have enacted laws to offer some protection of rights for homeowners and residents of HOA communities. These new laws restrict HOAs from prohibiting display of certain flags, political signs, and religious symbols. However, the HOA industry continues to heavily influence state legislators to include exceptions that favor HOA board authority.

Typically, state laws allow HOAs to maintain control over how, where, and when homeowners can display flags, political signs, holiday and religious decorations. So conflicts continue to arise, as well as HOA lawsuits.

Laws in most states do require HOAs to hold at least one open meeting per year. Most state laws also say that owners have a right to voice their concerns at those meetings. However, the same laws permit HOAs to limit owner input at meetings. For example, it’s normal for HOAs to limit each owner to a 3-minute time slot to speak before the board. With few exceptions, there are no legal requirements in state law for HOA boards to take action to address homeowner concerns. Quite often, nothing gets done! Owners are barely “heard,” but dissatisfaction continues to simmer unattended, until the conflict boils over.

Even worse, states rarely enforce HOA meeting requirements, allowing some HOAs to completely ignore homeowner complaints or differences of opinion.

Historically, legislative reform of HOAs has been woefully weak and ineffective. Many homeowners agree with IAC that state laws don’t truly protect the rights of owners and residents from unreasonable, unconstitutional HOA rules.

True legislative reform must have clear intent to get rid of unreasonable, unconstitutional HOA rules! It must seek to eliminate loopholes to get around the law. And, above all, the law must require straightforward and meaningful enforcement at the state level.

Strengthen state regulatory agencies and Ombudsmen

In a few states, an Ombudsman or regulatory agency exists, but with very little authority and no state funding. These regulators merely take complaints, keep a record of them, and file an annual report to the Governor or Legislature. Their sole intervention consists of notifying the HOA of the consumer’s complaint, and requesting a response.

This is usually not very helpful to homeowners complaining about apparently unfair or illegal HOA rule enforcement. As long as state law allows Covenants and Restrictions to circumvent property rights and constitutional protections for homeowners, state agencies can do little to force the HOA to be reasonable. Ombuds and consumer protection officers can merely advise both HOAs and consumers, but they cannot force compliance with the law.

Here’s something else to consider. Strict HOA rule enforcement often goes hand-in-hand with corrupt HOA leadership. When certain devious HOA board members or managers want to cover up their wrongdoing, they often abuse their power to enforce covenants, restrictions, and rules as a weapon to silence potential whistleblowers.

That’s why it’s so important that state law can help homeowners to get rid of unreasonable, unconstitutional HOA rules.

So, what kind of legislative proposals can help homeowners who want to get rid of unreasonable, unconstitutional HOA rules?

It’s simple. State legislators must enact laws that prohibit enforcement of Covenants and Restrictions that violate Constitutional rights, starting with First Amendment rights. To avoid future misunderstandings, each state law must include this clear statement of intent. No land use or property rights and responsibilities agreement can be used to force owners or residents to “contract away” their Constitutional rights, simply because of where they live.

In addition, state laws need to clearly define “unreasonable” covenants, restrictions, and HOA rules. Any rule that interferes with private property rights, without any basis for preserving public health and safety, or preventing an objective measurable public nuisance, would be defined as unreasonable.

The law must also clearly state that HOAs cannot amend their Covenants and Restrictions by “agreement” or vote, in an effort to override state law to enact new unconstitutional rules.

To lobbyists from the HOA-industry, this may seem like a radical proposal. But for housing consumers and homeowners with common sense, it is the only true legislative solution to the problem.

Due to decades of industry influence, government has made it nearly impossible to “choose” housing that’s not burdened by CC&Rs and HOAs. IAC believes it’s time to reverse the balance of power back to the people, where it belongs.

Non-Legislative solutions

Amending the Covenants and Restrictions

In the absence of effective HOA regulation, home and property owners would do well to seek more immediate solutions to uphold their rights.

First, owners should consider amending their CC&Rs to remove all of the offending covenants and restrictions. Why? Simply put, because no HOA can enforce restrictions that don’t exist.

Second, owners might consider reducing the responsibility of their HOA board to what really matters: maintaining and managing common property. Strip the HOA board of all of its rulemaking and enforcement authority (fines, liens) with regard to use of private property. This action would eliminate the “need” for both architectural standards and home landscape control committees. It would free owners to improve their property as they see fit.

Admittedly, it’s not easy to reach a consensus on amending the HOA’s covenants and restrictions. It can be hard to get some pro-HOA property owners to agree to get rid of unreasonable, unconstitutional HOA rules. But it’s not impossible. The first step is communicating with co-owners. That may entail using modern technology such as neighborhood apps, as well as going door-to-door, to engage in face-to-face discussion.

This Covenant amendment solution is more practical for smaller communities with fewer members. In some parts of the U.S., a high percentage of HOAs consist of fewer than 100 units, and many are smaller than 20 dwellings.

In larger communities, or where situations make it too difficult to change the CC&Rs to get rid of unreasonable, unconstitutional HOA rules, homeowners will need alternative strategies to prevent abusive enforcement. Some unconventional suggestions follow.

Use rewards instead of penalties

Instead of punishing owners for violating covenants, look for ways to collaborate with co-owners to create pleasant social events and positive reinforcement. Put another way, find alternatives that will encourage desired outcomes vs. punishing undesirable outcomes.

For example, hold free information sessions on organic lawn weed control, or hold an annual event and invite local garden centers and landscape businesses to display their plants and answer questions about their services. Very large communities might also consider holding an annual home improvement fair, showcasing products and services of local business owners. If that’s not feasible, coordinate a bus, van, or carpool to similar events held in your area.

Encourage neighborhood volunteer committees to assist owners and residents in need with simple home maintenance tasks. Recognize neighborly behavior with an annual (nominal) award for Neighbor of the Year.

Condominiums and townhouse communities might consider offering small discounts for early payment of HOA fees, in addition to the usual penalties for late payment.

To reduce complaints about noisy neighbors, HOAs need to ensure their rules encourage owners and residents to use appropriate soft or resilient floor coverings, add soundproofing materials in adjoining walls, and to use personal headphones or earbuds for listening to music, movies or podcasts.

To increase privacy and personal security, HOAs should encourage privacy fences or hedges, rather than discouraging them.

These are just a few examples. HOA leaders would do well to promote other constructive suggestions to promote peace and harmony in community living.

Set reasonable expectations

It is challenging, but possible, to get rid of many unreasonable, unconstitutional HOA rules. But homeowners will not be able to eliminate all HOA rules.

Owners and residents of HOA-governed communities of all sizes must recognize that compromise is necessary. No owner or set of owners is entitled to have their own way 100 percent of the time.

This may seem obvious to many readers, but it serves as reminder to others who are intent on demanding their rights, even at the expense of others.

IAC hears from all kinds of people all over North America. Most of them present legitimate concerns about HOAs abusing their power to make and enforce all sorts of rules. But sometimes a homeowner’s expectations are unrealistic or self-serving.

Take, for example, the small number of homeowners who insist on an elaborate holiday displays for Christmas or Halloween, with no limitations on the scope of their rights to free expression.

The homeowner may be pleased and proud of their flashing lights, sound systems blaring holiday music, or gory and offensive displays of horror. But these extreme expressions of speech or creativity often create public nuisances. They can disturb the peace, and might lead to fearful reactions of other residents, especially children. If a holiday display attracts a great deal of traffic, residents might be unable to find a parking space, while drivers and pedestrians may be at higher risk of a traffic-related injury or fatality.

A gentle reminder

IAC gently reminds readers that no Constitutional right or property right is unlimited. Beyond the law of the land, it’s also important that we all consider the impact of our actions on our neighbors.

Continuing with the previous example, each person living in a community is equally entitled to safe driving and walking conditions, a peaceful nights’ sleep, and a readily available parking spot when returning home. No owner or resident has the absolute “right” shine distracting bright lights or play holiday tunes over and over, for hours on end, especially at a high volume.

Other examples of unneighborly behavior include things like installing surveillance cameras directed toward someone else’s property. It’s also wrongheaded to expect neighbors to happily accept your frequently barking dog. It is disrespectful to exercise your right to “free speech,” when it includes obscene language or imagery. The First Amendment should never be used to justify cyberbullying one’s neighbors on social media. By engaging in such self-serving, unsavory behaviors, we devalue the First Amendment.

Yes, it’s critically important to get rid of unreasonable or unconstitutional covenants and HOA rules. But it is equally important to foster living environments of peace and harmony. That requires HOA leaders and government policy makers to encourage kindness, patience, and love for one’s neighbor, not a toxic culture of HOA rules that pit one person’s rights against another.