What Are Unenforceable HOA Rules?

There seem to be rules for everything—from real estate rules to homeowners association rules. However, your HOA may have added rules and regulations that may not actually be enforceable. For example, any rules that contradict either federal or state law, are enforced selectively or inconsistently, or are enacted without following proper procedures are considered unenforceable.

Start by learning how to find HOA rules for your community. If you don’t have a copy of the CC&Rs, request one directly from your HOA or county recorder’s office. Carefully read through the rules and compare them to the examples of unenforceable HOA rules listed below. If any of your HOA’s rules appear questionable, take the time to confirm that they’re actually considered unenforceable in your municipality before you start making waves.

Additionally, the rules should clearly outline which home and community upkeep tasks are your responsibility and which are the HOA’s. This can help prevent future disagreements, misunderstanding, or violations.

1. Rules Enforced Without Authority
While an HOA has the authority to create rules and regulations for its community, its authority is not unlimited. HOA fines, for example, can be imposed only if a community rule has been violated. For example, your HOA cannot simply decide to fine you without justification or evidence of a regulation violation. If you feel you have been unjustly fined, check the community regulations and appeal the fine with the HOA if it does not appear that you broke any rules. Hiring an attorney experienced with HOA disputes, such as a homeowners association attorney, can increase your chances of a successful appeal.

2. Selectively Enforced Rules
What happens when HOA rules are not enforced consistently? If your HOA selectively enforces rules and seems to target only specific individuals or groups of people, these may be unenforceable rules. Particularly, when an HOA enforces rules only against a protected class of individuals, they could be violating the Fair Housing Act. If such selective enforcement is proven, your HOA could face discrimination charges. Similarly, if a certain rule has been in the HOA covenants for years but is only just now being enforced, you could make a case against the rule.

3. Rules Enacted Without a Majority Vote
Every HOA has a set of procedures, outlined in its bylaws, that must be followed when creating new rules or amending its CC&Rs. Typically, proposed rules must be voted on by community members. If the HOA is trying to enforce a rule that was not properly added to the community rules and regulations, you may be able to dispute whether you are indeed violating a policy. Look for information on the procedures your HOA has for creating new rules, and find out if those procedures were indeed followed. (Doing this may require a little research and some review of the HOA’s bylaws, minutes, and other records.)

4. Discriminatory Rules
Discrimination based on an individual’s race, disability, ethnicity, religion, sex, or familial status is prohibited by the Fair Housing Act. Some states have passed laws preventing discrimination on the basis of other factors, such as sexual orientation and gender identity. To report a fair housing complaint regarding discriminatory HOA laws, contact the U.S. Department of Housing and Urban Development or complete the online form on its website.

5. Freedom of Speech Violations
Freedom of speech is a right that is protected by the U.S. Constitution. HOA covenants cannot contradict constitutional rights. This means, among other things, that HOA covenants cannot prohibit individuals from displaying their preference for a certain political party or candidate on their property. However, for the purposes of aesthetics and curb appeal, your HOA can make rules that limit where you are allowed to place political signs on your property. If you believe your homeowners association is infringing on your free speech rights, complain to the management company and, if necessary, escalate the matter to a local or state authority.

6. Second Amendment Violations
The Second Amendment protects the right to bear arms. While your HOA may be able to enact restrictions on carrying or using firearms in communal areas, they cannot create rules prohibiting or restricting residents from owning firearms. As with other rules you feel are unenforceable, begin by complaining to the board or management company, and seek help from a local or state agency as needed.

7. Freedom of Religion Violations
Religious freedom is another constitutionally protected right. If HOA rules expressly exclude members of any specific religious groups from the community or bar their access to any communal areas, these regulations would violate the Fair Housing Act. Moreover, even if the rules do not specifically cite religion as the reason for exclusion, you could still file a case with the management company or U.S. Department of Housing and Urban Development if the intent is clearly religiously motivated.

8. Any Violation of Federal or State Law
As mentioned earlier, HOAs cannot enforce rules that go against federal or state law. Research federal laws, such as the Freedom to Display the American Flag Act, or state laws, such as Florida’s laws preventing HOAs from restricting the types of plants homeowners can grow on their property, to identify whether your HOA is trying to enforce something it shouldn’t. If you find any laws that do contradict the HOA’s rules, start with the property management company and pursue legal assistance if necessary.

9. Satellite Dish and Antenna Restrictions
If your HOA is demanding that you remove your satellite dish or TV antennas, you may be able to fight the rule. The FCC’s OTARD (Over-the-Air-Reception Devices) rule states that an HOA cannot stop its residents from installing antennas or satellite dishes on their property. However, bear in mind that your HOA may be able to limit the size of satellite dishes or impose rules regarding where satellite dishes or antennas can be placed.

10. Limits on Landscaping
In some states, including Florida, Texas, California, and Colorado, there are laws preventing HOAs from banning the use of drought-resistant landscaping, called xeriscaping. Similarly, several states, including Hawaii, Oregon, Florida, Colorado, and California, have enacted laws to protect a homeowner’s right to install an electric vehicle charging station on their property. The CC&Rs for HOAs in these states should not include any laws banning charging stations.

11. Clothesline Bans
Clotheslines are a regular target of HOAs. Some label them as eyesores and try to prevent their residents from being able to hang their laundry outside to dry. Depending on where you live, however, HOA rules and regulations regarding clotheslines may be unenforceable. A few states, including Florida, Maryland, and Colorado, have “right to dry” laws that prevent HOAs from enacting rules against drying clothing outside. Just keep in mind that HOA backyard rules are still generally able to stipulate where clotheslines can be placed or how large they can be.