Fight Your HOA the Right Way—Or Else

Fight HOA.jpg

It needn’t be said that today’s homeowners are not in the business of picking arbitrary fights with their HOAs. Yet, from noise to parking to enforcement of community rules, fights between homeowners and boards are far too common. This is an unfortunate, but true proposition.

In turn, today’s homeowner needs to know how to intelligently take on an HOA board if/when such a dispute may arise. As we will soon discuss, the mistaken judgment in pursuit of a claim against a homeowners' association could result in a five-figure legal bill. To assist if you are in such a problematic scenario, this article will describe the three concepts you need to master before taking the fight to your homeowners' association: learning your association's CC&Rs, learning the relevant law regarding your dispute, and how to craftily pursue a resolution with your association's board.

1. Know the Association’s CC&Rs

Although it may feel like if you are the victim of aggressive enforcement of community rules, association boards are not fiefdoms of unlimited power. The power may feel overbearing and grand, but it is not legally held by the board unless it is expressly granted through the community's governing documents. Community association boards function as not-for-profit corporations in most states, so the board of directors are granted power through the founding documents. These bylaws assign the right of the board or directors to promulgate and enforce what are commonly referred to as CC&Rs, or covenants, conditions, and restrictions.

No matter how much a powerful board member personally dislikes an aesthetic choice on your property, the member may not use the enforcement mechanisms of the homeowners' association unless the CC&Rs permit her to do so. CC&Rs not only dictate if a board may take action against a member, but how.

For example, let’s say our homeowner have a deep and fundamental concern about changing climate through the warming of the earth. Distraught from the worsening data, she makes a moral determination that her homestead must reduce as much energy consumption as possible. Amongst the changes to her lifestyle, she determines to unplug the clothes drier for good and resolves to utilize a clothesline for drying laundry. A week goes by after hanging the clothesline, and she is at ease with her new lifestyle—that is, until she receives that fine in the mail for violation of community rules.

Although the choice of a hanging a clothesline is not religious in nature, for folks like our example homeowner such beliefs about the earth are as good as dogmatic. The potential for a serious HOA fight is high, so it is imperative for our homeowner to get a full understanding of the relevant CC&Rs pertaining to the clothesline before choosing a course of action.

The CC&Rs must explicitly state that hanging a clothesline is a fineable offense—directors put-off by the aesthetic feel of the clothes may not take action against the homeowner otherwise. Additionally, the enforcement procedures are dictated by the CC&Rs. If the governing documents say that a homeowner needs to be sent a written warning before assessing a fine, then those procedures need to be followed to the letter. Homeowners' association directors have a fiduciary duty to all the association members meaning that not only are they required to enforce rules uniformly, but the directors may not apply the enforcement mechanisms of an association in an arbitrary or capricious fashion that might incur legal liability for the association.

If the board does not abide by the CC&Rs in enforcement of community rules, alert the board in writing as soon as possible of the error, and request a hearing to further discuss the issue. If you choose to discuss the violation of community rules by the board on the phone or in person (not recommended), make sure to document your understanding of what was said in the moment. Keeping a paper trail of your actions involving an HOA fight will be a great asset if a lawsuit is filed over the matter.

 2. Know the Relevant Law

Without a close check on their authority, it is possible that an association board could get carried away and pass rules that are in violation of the law. Just because a rule is properly promulgated by the board of directors, these directors still must abide by federal and state laws.

First, with respect to federal law, all homeowners' associations must abide by the Fair Housing Act. No matter the reason, a board may not enact a rule that discriminates against a protected class of individuals including race, color, national origin, religion, sex, disability, familial status, and age. Some of these federal prohibitions are more obvious than others. Most of us are now familiar with the horrible racial covenants used in the 20th Century as a means to keep people of color from living in certain neighborhoods. Such prohibitions are explicitly forbidden by the Fair Housing Act—this you likely already know.

The term ‘familial status’ is less commonly understood, yet is afforded the same protections as the other classes listed above. In essence, the law requiring protection of familial status prevents communities from passing rules discriminating against children[1].  It might seem reasonable in certain communities to restrict the use of common areas after 10 p.m. to adults only as a way to actually protect young people from grownup situations. Ironically, such actions to protect young people is viewed by the law as discriminating against them. Your homeowners' association—like all American corporations for and non-profit—must abide by all applicable federal law.

The other protected class to note is folks with disabilities. The requirements of homeowners associations are unique with respect to this class as a board of directors must approve a reasonable accommodation or modification for a disabled tenant. Simply, the reasonable accommodation element applies if a disabled member requests that the community rules be reasonably changed to help him/her enjoy the use of her property, (parking is a common example). Under reasonable modification, the board must permit a disabled resident to modify the residence within reason if it is necessary for the enjoyment of the home. If you have more questions about federal law and the Fair Housing Act, we have an in-depth treatment here for your perusal.

Besides federal law, homeowners association boards must abide by any relevant state statutes. It is imperative that you look up the relevant state law regarding your legal issue with your board as the laws vary widely state to state.

It won’t surprise you to learn that many states supplement the federal protections of the Fair Housing Act to include sexual orientation and identity. But interestingly, and to prove my point about always needing to double check the existence of state law to a matter, there may even be statutes applicable to issues as mundane as hanging a clothesline.

What some consider the right to blight the neighborhood with ugly clothes, others like our example of the earth-loving homeowner from the previous section, describe as the right to solar access[2]. There are 19 states that have laws on the books protecting the right for a homeowner to use the sun as she sees fit, including using solar energy to dry clothes over electricity.

Now recall the point we made about a conflict between the CC&Rs of a homeowners' association and state law—namely, that if a state law prohibits a certain action than the board must abide. If our example homeowner lives in a state with such a statute such as California, Colorado, Texas or Florida, she has the law on her side and should pursue a resolution accordingly.

Let’s now move on to our final section where we get to the important part: how to smartly pursue a claim against your association without costing yourself thousands of dollars.

3. Be Smart with Your HOA Fight

It is already bad enough that a dispute has arisen with your association, the last thing we need to do is exacerbate the problem by making it more expensive. Even if you are completely in the right—with the law on your side and everything—you still could be obligated to pay additional monies if you are not careful. An example will be instructive.

We return to our homeowner passionate about her right to use the solar energy on her property to reduce her impact on climate change. Let’s assume she lives in a jurisdiction like Florida where this is a state statute protecting her right to dry her clothes out of doors. Now what?

Remember the cliché ‘two wrongs don’t make a right?’ It is very applicable in these scenarios. Our homeowner residing in Florida is correct in asserting that her board of directors is improperly forbidding her use of an outdoor clothesline. Yet, it is imperative to remind our readers that as this dispute works its way toward resolution—and it may take time—you are still obligated to abide by all the terms of your CC&Rs.

Let’s say our example homeowner was fined improperly by her board for the outdoor clothesline. She’s irritated and rightfully so. Yet, it is when we are emotional that we are most at risk of make a costly choice. You of course, would never, make this mistake, but our hypothetical homeowner decided that if they are going to illegally fine her, then she is going to stop paying assessments until the board directions come to their senses and resolve the dispute as it should be. Like the cliché teaches us, the homeowners association's legal error does not grant our homeowner the right to withhold HOA fees as she deems appropriate. Sometimes in life we must swallow our pride, and with an HOA fight, it is certainly worth it.

Before pursuing outside legal remedies, any homeowner will want to use the information gleamed from step 1 above and use the community association's procedures to object to the policy as the rules state. These means may include writing a formal letter, attending and advocating at a hearing, and formally requesting a variance, among others. And hopefully, the board is comprised of folks with the character to uphold these rules and apply them judiciously. Sometimes though this is not the case, and the procedures prescribed in the CC&Rs for dispute resolution will not be effective.

Back to our example, if our homeowner decided to withhold her assessments out of principle, she is very likely leaving herself open to a serious amount of legal liability. If there is a state law protecting the right to air dry, a legal claim against the board has a good chance of being successful. But success has never tasted so bitter. At the minimum, a legal claim in local court will take a few months to be resolved, during which time the unpaid assessments accrue interest, late fees, administrative fees, and collection costs. Much worse though are the potential ‘reasonable attorneys’ fees.”

‘Reasonable’ refers to the customary rates charged by similarly situated attorneys defending association boards, not from the general moral sense of what is right to charge someone. There are too many unfortunate folks that have made a similar mistake to our example homeowner and erroneously withheld other monies or assessments during a dispute. Upon resolution of the case—even with a win like our homeowner would expect in Florida—a court will still find the homeowner separately liable for any unpaid fees or assessments plus the reasonable attorneys’ fees to pursue the collection. Nor is it a small amount of money; depending upon how long the case drags out, the ‘reasonable attorneys’ fees’ could add up to tens of thousands of dollars!

You are working way too hard to lose a five-figure sum over a mistaken legal strategy. Although a bitter pill to swallow, keeping up to date with your HOA fee payments is a must during an HOA fight. No moral victory is worth an unnecessary five-figure legal bill. Proceed with caution—we are here if you need us.

Footnotes:

[1] The familial status class designation applies to the parents of the children as they are the folks suffering the potential injury under the law.

[2] This is real.