In an HOA, Is Your Home Really Your Castle?
A home should be your respite from the world, your castle, your domain, of which you are "the master." But, if your home is in an HOA community, is that just a pipe dream?
Homeowner associations are notorious for having an amazing amount of power to wield. Power afforded to them by a seemingly iron-clad contract with homeowners. Most HOA contracts require a homeowner to agree to abide by the association's rules as set forth by the association board.
What's more, regardless of the rules the homeowner agreed to abide by when they purchased their home, the rules can change, sometimes drastically and sometimes to the homeowner's detriment. Which should put a shiver down the spine of any homeowner residing within an association. This begs the question, "Can they do that?" In short, the answer is yes. We'll explore some possible ways an HOA can assert its authority and be well within its right to do so.
Keep in mind that all HOA's and HOA contracts are different. Some have more power than others. This is why it's important to read those contracts before you sign them and know exactly how much power you agree to give them over your home.
Can an HOA File a Lien Against a Property?
Yes. Certainly, homeowner associations can, do, and will file liens against properties.
A lien is a claim filed to keep possession of another person's property until a debt owed is paid. If a property owner owes a debt to the homeowner association it is likely a lien will be filed and is among the first steps in a foreclosure proceeding.
How fast a lien is filed when a debt is owed to an HOA is at the discretion of the HOA board. Generally, associations in tighter financial positions will act faster than HOAs with an abundant reserve.
Can an HOA Foreclose on a Home?
Yes. Yes, a homeowner association can foreclose.
Most, if not all, HOAs have this ability. In fact, it's one of their most powerful tools to maintain compliance among residents in their community. Whether or not you own your home free and clear, or if you have a mortgage, an HOA can foreclose on a home for a number of reasons. Predominantly the reasons are financial, for example:
- Dues: If a homeowner has failed to pay their dues to the HOA, the association can and may foreclose. How long they allow a homeowner to be behind on dues before they begin foreclosure is ultimately up to the HOA board's discretion. Some HOAs allow much more leniency than others.
- Fines and fees: Typically, fines and fees are imposed by an HOA when a homeowner fails to comply in some way. If the homeowner does not pay those fines or fees, the HOA can and may foreclose. Again, how long they allow a homeowner to go without paying before foreclosure is at the discretion of the HOA board.
Can an HOA Sue a Homeowner?
Yes, absolutely. Homeowner associations can and do file lawsuits against homeowners all the time.
Again, when a person purchases a home in an HOA community, they are agreeing to abide by a set of rules and, in most cases, pay dues. It's a contract, and like any contract, if one side or the other fails to uphold their end of the agreement, they run the distinct risk of legal action. Being in a contract with a homeowner association is no different in that respect.
On the other hand, being in a contract with an HOA is different in the respect that the rules in the agreement are subject to change. While most contracts don't change without the agreement of both parties, HOAs are different. The rules a homeowner agreed to when they purchased their home can change at any time. Unfortunately, even if a homeowner doesn't agree with newly changed rules, they must abide, or the association is within its right to seek legal action.
Can an HOA Change the Rules?
Yes, HOAs can and do change the rules.
This is among one of the most common complaints made by homeowners living in an association and is perhaps one of the most volatile issues that causes substantial discord in HOA communities.
Homeowner associations are charged with protecting and promoting the property values in their communities. As times change, as board members change, and as the community changes, so do the rules. The rules are intended to meet at the confluence of community need and property value preservation. Both of which, depending on the person, could be interpreted to entail vastly different things, leaving room for conflict when community members and board members disagree.
Ideally, an HOA board acts in the interest of the community, putting community desire among its most important priorities. However, depending on the HOA board members, that may not always be the case. Many HOAs completely disregard the community's wishes and implement their own.
For example, the HOA board of the Brandermill community in Chesterfield, VA, decided to enforce a mandate that required all 3800 residents to purchase new, $155 board-approved mailboxes, regardless of community disapproval.
Can an HOA Force a Homeowner to Comply With Rules They Don't Agree With?
Yes. Resoundingly yes, an HOA can force a homeowner to comply with rules they don't agree with.
This is one of the most consistent sources of conflict between homeowners and their governing HOA. Many such conflicts have resulted in full-blown stand-offs and battles between homeowners and HOA board members. Unfortunately, many times these battles result in the HOA's favor mainly due to the fact that the homeowner agreed to a contract that said they'd abide by the association rules, regardless of the rules changing or their agreement with the rules in general.
Typically, contracts between a homeowner and homeowner association are iron-clad and difficult to fight when situations like this are broached. Inasmuch, careful consideration should be given before entering into a contract with a homeowner association.
Can an HOA Representative Come Onto a Property Unannounced?
Yes. Sort of.
There are no laws saying that someone can't come to a front door and knock unless they have been previously told that doing so would be considered trespassing. This extends to HOAs as well. Generally, an HOA should request to meet with a homeowner before showing up at someone's door and knocking.
However, it's not out of the realm of possibility. It's also a possibility that if, while at your door, the HOA representative should happen to observe a violation, you could be ordered to address the violation and comply or face possible repercussions.
More so in suburban neighborhoods, where the homes are closer together and on smaller lots, it's not uncommon for an HOA representative to come to a door and knock or leave a notice. Conversely, in rural communities, where the homes are on larger plots of land and driveway gates are common, it is less likely for an HOA representative to come onto a property unannounced.
In some cases, it might even be considered trespassing. For instance, if the property has a closed gate and, or no trespassing signs, it is illegal for anyone to cross beyond the gate without express permission or it is considered trespassing.
Can an HOA Inspect a Property?
Yes. Yes, an HOA can inspect properties.
When a homeowner agrees to purchase a home in an association, they agree to abide by the community rules as put forth by the CC&Rs or DC&Rs. It is the job of the HOA to enforce those rules and maintain compliance among its residents.
It is not uncommon among HOAs, especially those in smaller communities, to regularly make rounds inspecting the community for compliance. Although, inspections may happen for a number of reasons. For example:
- Complaints: If a fellow community member happens to file a complaint about a rule they believe another homeowner is violating, an inspection could be conducted.
- Building: If a homeowner should begin building on their property, regardless of compliance, an inspection by the HOA may likely occur.
- Timeline compliance: Should an HOA board change a rule and set forth a timeline in which the residents of the community must comply, an inspection is likely to occur at the deadline.
- Compliance check: If an HOA board member believes there is a property out of compliance, whether or not a complaint was received, can request to inspect a property to verify that all rules are being followed.
HOA Questions or Stories?
Do you have an HOA "Can they do that?" question or an HOA story? If so, please ask your questions or tell your story in the comments below.
© 2018 Dawn M
Dawn M (author) on July 04, 2018:
Wow! That's outrageous! I've never heard of an HOA doing such a thing. Until now.
The deal with HOA's is that they can make up rules at any time, even outrageous rules, so long as the HOA members vote it into effect it can be enforced.
Is what your HOA doing morally wrong? Ethically wrong? I'd say so. Legally wrong? Well, I doubt there is an actual law that deems this specific action as "illegal". Perhaps there is a case-law on record where a similar issue had been adjudicated? If so, that ruling would set the precedent for what your HOA would be allowed, or not allowed, to do in a similar case. In the event there is no case-law on record and your case is the first of it's kind, then, it's likely the HOA is not doing anything "technically" wrong. Until a judge deems it so.
Notwithstanding, if there are HOA members who feel strongly enough against it, want to spend the time and money to hire an attorney to fight it in court, they can. A judge would then decide if the rule will stand or should be overturned. Although, in my article “HOA Gone Bad: 5 Homeowner Association Horror Stories”, several homeowners tried their hand at fighting their HOA's many went broke, most gave up, several moved and only one prevailed. Generally, the odds of winning aren't great. Unfortunately.
I hope that helps! Good luck to you!
Tony Homa on July 04, 2018:
Spectrum has made an offer to discount phone, internet, cable bundle. The HOA is having a simple majority vote to decide. If accepted EVERYONE will be required to switch to Spectrum. Legal???
Glenn Stok from Long Island, NY on March 04, 2018:
Thanks for that reply Dawn. I'm sure both NYS and the HOA have placed liens on the property. There are auctions where people can pay the taxes owed and receive title to property from the state. And paying off the HOA for accumulated fees should not be a problem either, I would think. So I really am curious too. I can't get any information from them. It's just lost in the bureaucracy.
Dawn M (author) on March 04, 2018:
Thank you, Glenn :)
That certainly is an interesting situation with your neighbor's property. I imagine there are some nuanced differences in the law between NY and CA. But, here in CA both the HOA and the State would have filed liens and when there was no reciprocal communication or attempt to satisfy the debt by the homeowner, the house would have been sold at a public auction for at least the combined amount owed, satisfying both liens and putting the property into the possession of a new homeowner with a clear title. I find it curious that it doesn't work the same way in your state since it seems to be a logical solution. Now, I'm interested to know if there is a case law in your state that sets the precedence for such an instance? If I come upon an answer I'll be sure to share my findings here. Great question, Glenn!
Glenn Stok from Long Island, NY on March 03, 2018:
I live in an HOA community. I knew that they can change rules when I bought my home eight years ago. It was clearly mentioned in the contract, and it was one of the things I accepted because people said wonderful things about the area. So far they never changed any rules in a negative way.
One thing I find interesting, however, is with another home here. The homeowner died around the time I bought my house. She was alone and had no relatives. There was no one related to her who might have inherited her property.
For eight years now the taxes and HOA fees were not paid. The place remains empty and no one can buy the property because of a lien for the huge back payments that have been adding up, plus the RE taxes due.
I find it strange that nothing can be done to get past that stalemate and allow someone to take over the property. Have you ever heard of a similar thing? It be interested to hear what has been done in similar situations.
By the way, your article was very informative and well-written.