agreement | restrictive covenants

Are The Restrictive Covenants In Your HOA Legal At All?

If you want to join a planned community, you must agree to abide by the homeowner’s association’s covenants, conditions, and restrictions (CC&Rs). While some policies are easy to follow, there are also some restrictive HOA covenants. As a homeowner, it’s important to know whether restrictive covenants are legal and enforceable.


The Basis of Restrictive Covenants in an HOA

To understand the basis of restrictive HOA policies, homeowners must familiarize themselves with the standard governing documents of an HOA community: the CC&Rs, bylaws, and rules and regulations.


What Is the Difference Between Covenants and Bylaws?

The Declaration of CC&Rs plays a crucial role in the governance of a community. Its main purpose is to protect property values and ensure the success of the HOA. As such, CC&Rs dictate what a homeowner can or cannot do to their property.

Some of the more common covenants deal with approved paint colors for your house’s exterior, specific measurements for fences, and maintenance standards for your lawn. A community may also have restrictive covenants when it comes to the size and breed of allowed pets, the ability to put political signs on your property, or parking your car on the street.

An HOA’s CC&Rs focus on the “what” of community governance while the community’s bylaws focus on the “how.” Each community elects a board of directors to make sure that HOA covenants and restrictions are enforced. properly. The bylaws dictate how they are going to do that.

Bylaws will establish the number of HOA board members, the term limits for each member, their duties and responsibilities to the HOA, the number of board meetings per year, the method for conducting board meetings, the frequency of HOA board elections, and the election process.

Both CC&Rs and bylaws are recorded in the county or state where your community is located. As such, they are both legally binding documents.


What Are HOA Rules and Regulations?

rules | restrictive HOA policiesHOA communities also have a document that establishes the rules and regulations. Essentially, this document deals with policies that are not included in either the CC&Rs or the bylaws.

Common HOA rules include paying assessment fees each month, picking up after your pet when in common areas, keeping noise levels to a minimum after hours, and so on. You do not have to record HOA rules and regulations with the local government.


Are Restrictive HOA Policies Legal and Enforceable?

Before a prospective homeowner can purchase property in an HOA community, he or she will have to sign a contract. If you choose to sign, it means that you agree to all the terms stated in the CC&Rs, bylaws, and rules and regulations. And so, restrictive covenants are legal and enforceable.

If a homeowner does not comply with the rules, they can receive fines or suspension of privileges. Meanwhile, in extreme cases, the HOA may pursue legal action against non-compliant homeowners or place liens on their property.


A List of Unenforceable HOA Rules

Though it can be disappointing to learn that restrictive covenants are legal and enforceable, there are a few exceptions.


1. Invalid Restrictive Covenants

A property developer typically drafts the covenants and restrictions upon the completion of a planned community. If the board wants to add new covenants, they cannot do so on their own. A proposed covenant must first receive the majority vote from the board and the community at large. HOAs must follow the rule-making process outlined in their governing documents.

In addition, amendments to CC&Rs must be filed with your county or state. New covenants that have yet to be amended in the CC&Rs are not yet legal and enforceable.


2. Inconsistent Enforcement of Covenants

gavel | restrictive HOA policiesValid covenants can be rendered illegal or unenforceable if they are not enforced consistently. Board members have a fiduciary duty to act in the best interests of the community.

They must treat each homeowner the same way. Homeowners who violate the covenants have a right to a hearing before getting a penalty. The HOA board must send a written notice that includes details of the violation and a schedule for the hearing.


3. Contrary to Federal, State, and Local Laws

HOAs cannot enforce restrictive covenants that are contrary to federal, state, and local laws. Your community cannot impose restrictions that go against laws like the Fair Housing Act and the Americans with Disabilities Act. For instance, an HOA that doesn’t allow pets cannot reject a homeowner who needs a service animal. HOAs must also provide homeowners with reasonable accommodations even if they go against the CC&Rs.

In addition, the association cannot prohibit homeowners from drying their laundry on a clothesline, installing antennas and satellite dishes on roofs, and displaying the American flag on their property.


Can Homeowners Change Restrictive Covenants?

Not all HOAs are strict. Some associations may provide homeowners with a waiver that allows them to slightly deviate from restrictive covenants. However, this is more of an exception than the norm.

Homeowners can also appeal to the board to modify or remove a restrictive covenant. If the board agrees, the motion can go to a vote. If you obtain a majority vote, the association can amend the CC&Rs to reflect the proposed change.

However, if the association is not willing to accommodate the request, homeowners can decide to take legal action. A judge will be the one to decide if a covenant is legal and enforceable. Keep in mind though that this is a long process and will entail legal expenses. As an alternative, associations, and homeowners can also go into mediation. There will still be some expenses but not as significant as a lawsuit.


How to Deal With Restrictive Covenants

Unless they are invalid, inconsistently enforced, or unconstitutional, your association’s restrictive covenants will be legal and enforceable. And as a member of the community, you are required to comply. While this might not seem ideal, remember that the purpose of covenants and restrictions is to increase the value of your property and the properties around you.

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