Author: Brandi Head, CMCA, AMS
One question we are frequently asked is “Why do we have rules and regulations in our community?"
Homeowner's Association’s are designed to maintain your property values while affording your family a high quality of life. Your title agent is required to provide the governing documents to you at the time of closing on the purchase of your home. The “rules” can also be found in your Association Governing Documents which are located on the Homeowner Portal at www.GulfPPM.com.
Your Board of Directors have the sole authority to create the rules, regulations, and policies that govern your community. Your community manager does not make any decisions regarding the creation of these rules, regulations, and policies for your association.
Rules and regulations should always be reasonable. Any new rules or policies should always be reviewed by the association's attorney to ensure they comply and do not conflict with the existing governing documents. Some questions to ask when creating rules ad policies are:
· Is it necessary?
· Is it based on the governing documents or local/state/federal law?
· Is it enforceable?
· Does it encourage compliance?
Communication is an incredibly important part of rule-making, and community associations should take homeowner input into account. Below is a suggestion your Board of Directors could consider when thinking about creating a policy, and the impact it may have on the community as a whole.
Here’s an effective process to follow: Once a board has drafted a rule, it should consider circulating it to owners and residents and ask for comments. This could be done relatively inexpensively through an online poll or questionnaire. Board members should discuss the rule at an open meeting where they can explain their rationale and encourage owners to share their opinions. Depending on owner response, the board may want to consider amending the rule and begin the process again. If the board decides to move ahead, the final rule should be published well before its effective date to give all residents ample time to comply. Ideally, the new rule would be mailed out to all owners to allow them time to become familiar with it before it becomes effective.
The rules and regulations for your community are not designed to tell you what you can’t do on your property, but rather what you CAN do. The rules and polices are intended to maintain the harmony of the aesthetic appearance of the community, which in turn, upholds your personal property values. After all, you don’t want to live next to a pink house do you?
Enforcing community association rules is one of the most important jobs that your Board does. Rules and regulations are in place to maintain property value, meet state and federal laws and to keep the community running smoothly. Rules are the corner stones of a successful community. You’ll find the chaos quickly ensues when enforcement is lax or you make exceptions. Here are four important reasons why you need to enforce HOA rules.
Like any other business, associations have expenses for maintenance, amenities, insurance, etc. All owners must pay their assessments for the association to have money for day-to-day operations, upgrades and other expenses. If you’re lax on collections, every owner suffers the consequences of less maintenance or increased assessment fees.
Equality for All HOA Owners
Bumps, collisions and disasters happen when some drivers ignore the rules of the road. It’s the same for HOA's—owners must follow the rules to avoid problems. Word spreads quickly if you bend a rule for one owner, and it prompts others to ask for an exemption. It’s your duty to enforce the rules impartially for every owner in the community, including all Board members. Fair treatment paves the road for a successful community. Failure to do so creates chaos and the inability to correct the infraction.
As a Board member, one of your duties is to adhere to federal and state laws. Another duty is protecting the association against lawsuits. When rules are lax or inconsistently enforced, it can create a litigation risk or put the association at risk for breaking laws. When in doubt about laws or potential legal risks, ask your association attorney so you can keep your community on the right track.
Respect and Trust
Fairness and honesty are the foundation of trust. Warren Buffet said, “Trust is like the air we breathe. When it’s present, nobody really notices. But when it’s absent, everybody notices.” This is so true in a homeowner association. Owners notice when you enforce rules inconsistently. Not every homeowner will agree with every rule, but homeowners are more willing to abide by rules when they are enforced consistently. Create an environment of respect and trust for your community. To prove your consistency it is a good idea to publish in a newsletter or on the website how many violations and the various categories that are issued each month. This will prevent anyone from feeling “targeted”.
HOA Board members have many decisions to make. But, whether or not you should enforce a rule shouldn’t be a decision. Consistency: it’s one of the keys for a happier neighborhood environment.
HOA Restrictions: When Can You Fight Back?
Most HOA's implement rules to maintain their particular neighborhood’s status quo. However, there are times when the HOA's themselves may actually cross a line. While not common, HOA's can break the rules themselves. Homeowners associations are actually bound by federal and state laws, too. Not unlike the laws we all have to follow, HOAs must abide by their own regulations. Homeowners may fight back in the event their own HOA commits any of the following transgressions:
Violating the Fair Housing Act: The Fair Housing Act was put into place to protect homeowners from discrimination based on race, color, national origin, sex, religion, disability, and familial status. Some states even have additional protections in place based on sexual orientation or gender identity. HOAs are not allowed to deny new property owners or tenants based on any of these protected characteristics. Anyone who believes this act has been violated is allowed to file a complaint with the Department of Housing and Urban Development.
Enforcing unofficial rules: A homeowner must violate an official rule in the CC&Rs in order to face consequences from the HOA. The rule must be voted on and approved by the board before HOAs can begin enforcing the new regulation. Additionally, homeowners must be made aware of the change in regulations before they are subject to fines. This typically means changes to the HOA rules must be added to the CC&Rs with an official start date. Homeowners who have been fined for a transgression not stated in the CC&Rs can therefore appeal the fine directly with the HOA.
Outlawing satellite dishes: Thanks to the FCC’s Over-The-Air Reception Devices Rule, HOAs are not allowed to ban satellite dishes. Even if the HOA board thinks satellites are an eyesore, they are strictly prohibited from outlawing satellites. While some HOAs may still have rules in place regarding TB antennas, the laws have since changed. If your HOA ever tries to fine you for a satellite (or threaten to fine you), remember this kind of regulation is actually against federal laws.
Regulating native plants: In Texas and California there are laws protecting homeowner’s rights to grow native plants. This refers to plants that naturally occur within an area’s ecosystem. Additionally, in Florida, HOAs are not permitted to regulate plants based on the neighborhood’s appearance. Essentially this means HOA's cannot regulate a homeowner’s yard based on the appearance of the plants.
Prohibiting clothes lines: 19 states have laws protecting homeowner’s rights to “solar-drying” or using clotheslines. Some HOAs may try to put regulations in preventing clotheslines because of the lack of aesthetic appeal. Homeowners should always consult their state’s laws if or when they are fined for using a clothesline.
Taking advantage of homeowners: The purpose of an HOA is to protect the appeal of the neighborhood, not to police the residents to no end. All homeowners have the right to see the CC&R's, appear at board meetings, and communicate with other homeowners. Any homeowner who feels these rights have been violated is free to petition the HOA when necessary. Remember, they exist for the benefit of homeowners and the community.
When Are HOA Rules Unenforceable?
Sometimes, HOAs are unable to enforce their rules under certain circumstances. Above all, an HOA may not enforce any rule that conflicts with the law or violates homeowner rights. HOAs must also follow the correct procedure to enforce a rule, and if they do not follow those procedures, they cannot enforce it. Similarly, HOAs cannot pick and choose when to enforce a rule. If an HOA does so, homeowners can challenge the HOA, which opens the board members to liability issues.
While put in place to maintain local communities, typical HOA rules can vary dramatically from development to development. Rules that may be commonplace in one community may be irrelevant in another. As a result, every owner should pay special considerations to common HOA rules, as they will have a bigger impact on an investment than many people realize.