Whether you hate the color of your neighbor’s home or just wish that he would mow his grass, you technically have options when you are in an HOA. If your neighbor is doing something against the HOA’s bylaws and policies, you might be able to make an HOA enforce their rules, but it might not be easy. Your legal options in an HOA are limited by the bylaws and what you can actually do as a homeowner.
The Most Obvious Legal Options in an HOA
Your options and ability to make an HOA enforce their rules depend on the regulations and policies in your community. Look at the Covenants, Conditions, Restrictions and Easements (CC&Rs) for your community. The bylaws, articles of incorporation, rules and regulations may also have information that you can use. You may be able to take legal action against an HOA if it is not enforcing their rules. You could potentially amend the governing documents or remove someone from the board of directors. Most of your legal options take time, so it is generally better to try meeting with the HOA and asking them for help before you embark on a more difficult, more time-consuming option.
Your first step is to try to meet with the HOA and discuss the problem. Request a meeting with the board and bring all of your evidence. Show them the facts and why you think that they are required to enforce that specific rule. You should bring along any of the provisions in the CC&Rs or bylaws that supports your case. You will also want to bring along evidence or a witness as well. If you are complaining about a neighbor who plays music late at night, a witness or a time-stamped recording might be enough.
In some cases, this will be the only step that you have to take. If the HOA has the power to enforce the provision, then they can take the next step to solve the issue. As always, you should keep a careful record of the meeting in case you need to take legal action in the future.
If this meeting does not fix the problem, then you have to decide on the next step for making the HOA enforce their rules. Normally, the HOA’s governing documents give it a duty to enforce the regulations. While they might have this duty, they do not always have the enforcement ability to really effect a change. Most of the time, the HOA can only levy fines on members who violate the rules. In some cases, they may also sue a member who is not enforcing the rules.
Unfortunately, there are many HOAs that do not have any real power to enforce their rules. The governing documents give them the duty of enforcing the rules, but they do not have any way to actually force members to follow the rules. Additionally, some of the governing documents make rule enforcement discretionary. For example, the governing documents may recommend that no homeowner is allowed a fence. The HOA may choose not to enforce this rule for a homeowner who has a mentally ill family member who needs a fence to protect them. If the rule is discretionary or the HOA has no enforcement power, then the homeowner’s next step may be to amend the HOA’s governing documents.
Amending Rules, Regulations and the CC&Rs
This step can be time consuming. It varies depending on the governing documents of the HOA. You may have to put the amendment up for a unanimous consent of all homeowners, or you may need a majority to vote for the change. If you can get the rule amended, then you can give the HOA the ability to sue or fine homeowners for violating the rules.
Amending a standing rule is generally easier than giving the HOA enforcement powers. Because both of these options can be fairly complex, many homeowners will consult with their attorney before they start the process.
Take Someone Off of the Board of Directors
While there are many great members on board of directors, there are always going to be times when one member is not doing their job. This could happen because the board member has a conflict of interest or because they just do not want to do their job. They might not want to offend the other homeowner, or they might be friends with them.
Whatever the case, you can remove the board member from the board of directors. This process will generally be included in the HOAs governing documents. Additionally, some states have laws about the process. In Washington State, for example, any HOA member can call for a board remember removal as long as quorum is present to vote on it. If the majority of the members vote to remove the member, then the board member is removed. In other states, the vote has to be unanimous. Before doing this option, check up on all of the applicable rules and laws.
Taking Legal Action
The last step is to take legal action. If you cannot remove a board member and the HOA is not fulfilling their duty, you can bring suit against your homeowners association. The HOA must act in the best interests of the community and has to follow the law. If you can show that the HOA was acting in a discriminatory or unreasonable manner by not enforcing the rules, then you may be able to win your case. These types of lawsuits can be expensive, and you can never know if you will actually win your case. Unless you have a major problem, this expensive, time-consuming option might not be worth it.