How to Fight Your HOA (Homeowners Association)

Understanding Your HOA

Understand your relationship to the HOA. Generally, when a home (or lot) that is part of an HOA is purchased, the buyer automatically becomes a member of the HOA. As a member, the homeowner must comply with the rules of HOA membership, including payment of HOA dues and following all conditions and restrictions in the community. While the HOA’s primary function is to protect and maintain the value of both the private and communal property in the community, the actions of the HOA’s board and its interpretation and application of the HOA’s rules sometimes cause problems for individual homeowners. Are you allowed to put up a storage shed? Can you paint your house a different color? Does your tree need to be pruned? Can you park your R.V. in the driveway? The HOA probably has rules applicable to each of these circumstances.

Review your HOA's rules. Different states have different requirements for what documents the HOA must maintain as part of the HOA’s rules. Most frequently those documents include: (1) the Articles of Incorporation, (2) the Bylaws, and (3) the Declaration of Covenants, Conditions, and Restrictions. These documents collectively describe the powers, limits, and obligations of the HOA. These documents also usually include a description of how the rules can be amended, how the HOA board is elected (or removed), what powers the board holds, how meetings are called, and the consequences of any violations of the HOA rules by the members. The Covenants, Conditions, and Restrictions (CC&R) document outlines the rules for community members, such as how they maintain the outsides of their homes and what they can, and cannot, do in public inside the community. The HOA’s rules operate much like a contract between the HOA and each individual member-homeowner. Any breach of the contract could be grounds for legal action. One of the remedies available to the HOA for the homeowner’s breach of the HOA rules is foreclosure against the homeowner’s property.

Understand the duties and responsibilities of the HOA board. In general, the Board of Directors is responsible for managing all matters concerning the homeowners peaceful enjoyment of their homes and the common areas of the residential community. The Board may delegate daily management functions to an outside property management service, however, ultimate control and responsibility remains with the Board. The Board’s powers and duties to all homeowners within the HOA include enforcing the rules governing the ownership and management of the residential community, paying all taxes and assessments and avoiding liens upon the common area, securing general liability insurance on behalf of the HOA, securing contracts for materials and services in order to maintain the common area, electing and/or organizing committees, officers, or employees of the HOA, and overseeing the preparation of budgets and financial statements on behalf of the HOA, . They are also responsible for writing all rules of operation for the common areas and facilities within the HOA and notifying all homeowners of these rules on a regular basis, notifying homeowners of any violation of the rules and conducting investigative meetings and/or disciplinary proceedings against members of the association for violations of the rules, and placing a lien on any homeowner’s property when timely payment of dues and assessments are not made.

Understand your duties. Owning a home that is managed within a HOA obligates you to accept and follow the HOA's rules. The CC&R sets the rules and responsibilities of living within your residential community and enjoying the common areas within the development maintained by the HOA. Homeowners must follow all written rules set forth within the CC&R, for example, parking restrictions, home maintenance, home improvement, and prohibited conduct. Homeowners must pay all fees and assessments on a monthly basis to contribute to the cost of repairing and maintaining the common areas within the residential community. Homeowners cannot refuse to pay any fees and assessments, however, a member has the right to take action against the HOA in order to contest any unwarranted charges.

Documenting Your Conflict with the HOA

Determine the nature of your action or conflict. If you are in a dispute with your HOA can be because the HOA is taking action against you or because you are taking action against the HOA. If the HOA is taking action against you, it is typically in order to collect past dues and fines. If you are taking action against your HOA it is usually in order to ask a court to require the HOA to perform the responsibilities it is obliged to perform under the rules. For example, to approve your reasonable request for improvements to your home.

Review the HOA rules. If your board does not provide you with a specific section of the rules that you are breaking, you will need to find it. Sometimes, the rules do not say what the HOA’s Board members think they say. Look for general or ambiguous language. (Or, for that matter, completely absent or omitted language.) In some cases, different sections in the HOA documents internally conflict, i.e. say opposite things regarding the same issue.

Document your actions. In general, keep copies of emails, letters, bills, and warnings from the HOA. If you have a conversation with anyone acting as a representative of the HOA, be sure to write down your understanding of the conversation in the form of a confirmation letter, and mail a copy of that letter to the HOA. This gives the HOA an opportunity to correct anything you might have misheard. If the HOA does not correct your understanding, as set forth in your letter, the statements in your letter could serve as strong evidence of what was actually said. If the HOA has routinely violated or ignored the rules in the past, while presently seeking to enforce a rule against you arbitrarily, you will be able to document that the HOA is not treating you fairly and reasonably. This is showing how the HOA has dealt with your similar issue in the past. As a member, if you were granted an exception to the HOA Rules, be sure to document that exception in writing, specifying precisely what was granted, who granted it, when, and for what time period. Some such exceptions might need to be recorded with your county recorder’s office in the same way as your property deed. To avoid keeping heaps of paper, simply scan these documents and keep electronic copies, ensuring that you have adequate file backups in case of a computer malfunction, burglary, or catastrophic loss.

Make sure your HOA has updated and amended their rules recently. This includes incorporating your state’s current HOA governing statutes. If not, your HOA Rules may be found to be unenforceable by the court. For instance, a number of states have enacted laws governing flags and solar panels placed upon structures and the Federal Communications Commission governs the placement of antennas and satellite dishes.

Opposing HOA Rules Internally

Pay your fines and dues. Pay your fines (and/or dues) now, and contest them later. If you ignore the HOA’s bills, not only will they begin to add up, but they likely will begin to accumulate additional late fees, penalties, and/or interest. The HOA usually has the power (and likely the will and ability) to place a lien on your property and even to foreclose on the property in order to collect the fines. If you are successful in your fight against the HOA, you likely will be able to get your payments refunded with interest. Remember, however, to make an effort to negotiate a resolution of fines and/or collection disputes between you and your HOA or its lawyer. Your HOA may be incentivized to settle your matter in order to avoid future expensive attorney fees.

Connect With Your Neighbors. If you are having an issue with your HOA, your neighbors might be having the same issue with the HOA. They can help to advise, support, and strengthen your fight. The more that members join together, the more likely the HOA will back down. It could be useful to gather signatures of neighbors who agree with you into a petition. As a unified group, you can more easily make positive changes by convincing board members to vote for specific changes to the rules or by voting in (or out) board members.

Attend regular HOA board meetings. The best proactive measure you can take when challenging an action your HOA has taken against you is to regularly attend and participate in HOA board meetings. Being present and knowing what actions the board is planning to take, and discovering past actions the board has taken, will alert and inform you of what you can expect as a challenging homeowner. HOA Board meetings can show you how the HOA addresses specific issues. Therefore, requesting copies of the minutes of a prior board meeting that addressed a similar circumstance will help you in laying a foundation in court that the HOA is treating you unfairly and being unreasonable.

Remember that most Board Members are unpaid volunteers. If you treat them with respect and kindness, you likely will get closer to your own goal. Remain professional, write well-reasoned letters, and speak politely in a cool, collected tone. While it may feel good to contemplate kicking in the door to a board meeting and calling the board members a variety of names, it will not help your cause. Instead, simply convey your position, any evidence you have to support your position, and what you actually want the HOA to do for you. This is not to say that you should avoid a show of strength. In fact, it is a good idea to make sure the HOA board knows that you intend to advance your position. Just be respectful.

Request a hearing. Write a professional letter respectfully asking for a hearing on your issue. Attend the hearing with multiple copies of your evidence and/or a signed petition showing neighborhood support. When you speak, keep it factual. While you may feel anger and frustration, keep your statement clear, concise, and professional. You might also consider filing a grievance with the HOA against specific individuals in the HOA (or under the HOA’s control) who are harassing you, randomly and capriciously enforcing regulations against you, or otherwise treating you poorly. In your written request for a hearing, request copies of the HOA’s records that were used as a basis for the HOA action against you, or the denial of your request for improvements to your property. However, some executive sessions of the HOA board meetings may be able to be held back from you, so check the rules.

Change the HOA rules or the board members. Oftentimes you can remove a troublesome board member by as little as 10% of members voting for such a recall. You can also try to amend the rules, though this process likely would require a substantial effort. However, if you can “sell” a change in the rules to fellow members as something that would benefit them (rather than simply helping you personally to avoid a fine), you might be able to gather the required support. Another, easier alternative to amending the rules would be to apply for a “variance.” This is, essentially, a request for an exception to the rules for your particular case. For example, perhaps you have a medical condition that requires a large disability-accessible van be parked in front of your home but parking vehicles long term on the street is usually restricted. The HOA might make an exception (grant a variance) in your case either as a gesture of good will or in order to avoid a lawsuit.

Fighting Your HOA From the Outside

Think Outside the Box. Remember that internal hearings or meetings are not the only ways to fight the HOA. For instance, if you can attract the attention of local media, you might cause your HOA to “give in” to community pressure.

Consider if your conflict should be taken to court. Some causes of action you may consider in bringing a small claims action are: Is the HOA acting arbitrarily and capriciously against you by preventing you from exercising your rights as a homeowner? Is the HOA discriminating against you based upon race, religion, or sexual orientation? Is the HOA misappropriating funds? Is the HOA neglecting their duties to repair and maintain the common areas? Does the HOA fail to notify members of meetings? Even small claims actions can be emotionally difficult, financially draining, and long-lasting. Remember, also, that the Board Members of the HOA you are suing probably are your neighbors, which can make your daily life even more difficult. Further, if you lose, your HOA rules may require you to pay the HOA’s legal fees, which easily exceed any damages you are claiming in your action. Although you may prevail in your action, the HOA might still be able to pass at least a part of their legal costs (and, even the damages award they’re ordered to pay you) back to you through a special assessment where all members must contribute a sum to the HOA (which won’t help you make friends with your neighbors). Courts often apply the standard of “reasonableness” when determining whether or not a HOA’s action against a homeowner is enforceable by court order. If the court determines that the HOA’s action or fine against a homeowner is not more likely than not unreasonable, it could find in your favor and reverse the action or fine imposed against you.

Watch for discrimination. If the HOA is citing and fining you, but not other members for the same infractions, it potentially is acting in an arbitrary and capricious manner, which opens the door for lawsuits based on discrimination. For instance, if you are denied permission to build a pool, but other neighbors have been allowed to do so, it is worth the effort to catalogue which neighbors, the location of their pools, and the approximate dates your neighbors installed their pools. If you can show that your denial was based on a “protected characteristic” such as your race, gender, national origin, religious belief, marital status, etc. you are well on your way to winning your fight against the HOA. Courts may find against HOAs when their actions fail to be fair and uniformly applied to all homeowners and you do not necessarily need to prove that they discriminated against you based upon a protected class. If you can show that your HOA treated you differently than it did other homeowners in your similar circumstance, its case against you will be weakened dramatically in the court’s eyes. Some states, such as Arizona, have a separate administrative process specifically designed to handle HOA disputes.

Consult a lawyer. You should consider retaining a lawyer. Doing so does not necessarily mean filing a lawsuit will be necessary. The mere presence of a lawyer in the mix often can cause the HOA to reconsider its position. Further, a lawyer can give you valuable advice regarding your strategy, can send letters and demands on your behalf, and can represent your interests in an ADR (Alternative Dispute Resolution) process or in litigation. Hire someone with experience in handling HOA disputes. This might not necessarily be a real estate lawyer. HOAs are not-for-profit organizations similar to corporations, which is a different thing entirely from typical real estate issues. Your local Bar Association can often give excellent recommendations and referrals.

File a small claims action. In the event you are unable to resolve your dispute with the HOA (for example, the HOA has imposed a fine against your that is not fair or within the rights of the board), the next option you may consider is to file a small claims action in municipal (magistrate) court. Most small claims jurisdictions are limited to damages of up to $10,000 and/or an order for specific performance against the HOA. You can bring a cause of action against the board claiming that it acted wrongfully and, as a result, you have suffered a financial loss. If you are successful in small claims court against the HOA, the court can order the HOA to reimburse you for the amount of fine you were wrongfully required to pay as well as your court costs. Personally visit your local clerk of court’s office or visit its website to obtain instructions and forms on how to proceed with your action.