13 Legal Rights Of Homeowners In HOA Communities And FAQs

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13 Legal Rights Of Homeowners In HOA Communities And FAQs

Most, if not all, homeowners associations are legal entities. As such, both board members and homeowners are afforded legal rights — all of which should be clearly outlined in your community’s governing documents. If you need further guidance, here are the homeowners rights against HOA communities.

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13 Legal Rights Of Homeowners In HOA Communities And FAQs

How To Change HOA Bylaws, Covenants, And Rules

What Are the Homeowners Rights Against HOA?
What are the homeowners rights against homeowners associations? As an HOA board member, here are 15 legal rights you need to know:

  1. Homeowners Have a Bundle of HOA Legal Rights
    Anyone who purchases property is afforded a bundle of rights. The legal rights of property owners include:
    • The Right of Possession: A person who holds the title of the property is the legal owner.
    • The Right of Control: A homeowner has the right to use their property as they please — as long as it is legal. In an HOA, though, homeowners must still abide by community rules and regulations.
    • The Right of Exclusion: A property owner can limit who enters their home — unless there is a warrant or court order. There are also easements for utility workers who need to access the property.
    • The Right of Enjoyment: A homeowner has the right to participate in any activity they deem pleasurable — as long as it is legal.
    • The Right of Disposition: A homeowner can transfer ownership of their property to another person. However, if there is a lien on the property, the new owner will have to pay it off.
  2. Homeowners Have a Right to Change HOA Rules and Regulations
    It is within homeowners legal rights to change the association’s rules and regulations. Homeowners can choose to take action if they deem certain rules as unfair, outdated, or discriminatory. The HOA board cannot stop them.
    However, make sure to check the governing documents for the procedure for proposing new rules or amendments. For instance, a majority vote may be required in order to change rules or implement new ones. Also, board members should ensure that these new rules are still compliant with state and local laws.
  3. Homeowners Can Question HOA Fees and Special Assessments
    As members of the community, homeowners are required to pay assessment fees each month. But that doesn’t mean that they will just pay any amount that the HOA charges them. Homeowners have a right to question a sudden increase in monthly HOA fees or why the HOA is levying a special assessment. This can be a form of financial oversight and so that homeowners know where their money is being used.
    Homeowners can take formal action, but they are still advised to continue paying their assessments. Keep in mind that the HOA board also has a right to place a lien on a delinquent homeowner’s property or even file for a foreclosure to collect unpaid assessments.
    To prevent drastic actions from both the association and homeowner, the board must tread carefully when it comes to increasing HOA fees or levying special assessments. Depending on your governing documents, HOAs might need to give adequate notice to homeowners via certified mail. There may also be a limit on how much you can increase HOA fees each year.
    Also, board members should properly communicate the reasons for an increase. They can provide documents to support these reasons, and reassure homeowners that this is for the benefit of the community.
  4. Homeowners Have a Right to Access Financial Reports, HOA Documents
    Board members cannot prohibit homeowners from requesting HOA documents including:
    • Financial Reports
    • Annual Budget Report
    • Reserves Summary
    • Vendor Contracts
    • Board Meeting Agendas and Minutes
    • HOA Membership Lists
    • HOA Tax Returns
    • Governing Documents
    • HOA Rule Changes or Amendments
    • Plans for Capital Improvement Projects
    Homeowners have a right to inspect these documents to see how the board is managing the community’s finances and assets. Access to budgets, expenditures, transactions will allow homeowners to see how their money is being used.
    In some cases, though, homeowners may first need to submit a written notice, as well as pay for copying and postage costs. HOA boards may refuse access to documents that are bound by attorney-client privilege and those with pending litigation.
  5. Homeowners Have a Right to Disciplinary Hearings
    A homeowner has a right to a hearing before the HOA takes disciplinary action, such as imposing fines or suspension of privileges. The board must send a written notice ahead of the hearing via first class mail. Homeowners also have the right to a fair hearing even if they have clearly violated the association’s rules.
  6. Homeowners Can Sue Board Members
    One can always use their homeowners’ rights against HOA communities. This means that a homeowner can choose to sue a board member due to disputes or perceived wrongdoings such as exceeding the limits of their authority or making unfair decisions. It even means that they can sue board members for bad decisions or sue HOA for selective enforcement.
    In the case of the latter, board members can take comfort in certain things. For instance, the Business Judgement Rule will protect them from personal liability as long as their actions were in the best interest of the community. The association’s D&O insurance will also cover your legal expenses. However, to prevent costly legal expenses for both parties, the board can recommend negotiation and mediation instead.
  7. Homeowners Have a Right to Display the U.S. Flag
    The HOA cannot prevent homeowners from displaying the American flag — even if they cite architectural control reasons. This is one of the HOA laws associations must know about.
    Homeowners are protected by the Freedom to Display the American Flag Act of 2005 and this supersedes any rule that you may have in your governing documents. However, HOAs can impose restrictions such as the location and height of the flagpole. Residents may also need to file a request before installing the flagpole on their property.
  8. Homeowners Can Display Political Signs*
    Homeowners’ right to display political signs will depend on which state your HOA is located. States like Texas and Washington prohibit HOAs from imposing bans on political signs whereas, in states like Virginia and the District of Columbia, no such laws exist.
    In most cases, though, HOAs can still impose some restrictions such as limiting the number and size of political signs, as well as how long homeowners can display them on their property.
  9. Homeowners with Disabilities Have a Right to Reasonable Accommodations
    According to the Fair Housing Act, homeowners with disabilities have a right to request reasonable accommodations. This can be in the form of a ramp so that homeowners who use wheelchairs can gain access to communal areas. Homeowners can also request for their service animal to accompany them even in pet-restricted areas within the community.
    HOA boards have to meet these accommodations as long as there are no other viable alternatives, and as long as these do not pose any risk to the other homeowners. In certain situations, such as in the case of service animals, HOA boards can request homeowners for documentation to verify.
  10. Homeowners Must Not Be Discriminated Against
    Homeowners associations must not discriminate against homeowners in any way, shape, or form. That means HOAs can’t deny housing, enforce rules selectively, or take any action based on discriminatory judgments.
    Again, the Fair Housing Act comes into play here. According to this law, homeowners must not be discriminated against based on race, color, sex, religion, national origin, familial status, and/or disability. Some states have their own Fair Housing laws, which extend to other protected classes as well.
  11. Homeowners Can Have Solar Installations and Satellite Dishes on Their Roof
    Previously, associations banned homeowners from placing solar installations, antennas, and satellite dishes on their roofs. Boards reasoned that such devices affected the uniform exterior appearance of the community and as such, lowered property values.
    With the passing of the FCC’s Over-the-Air Reception Devices Rule, though, HOA boards can no longer restrict homeowners from doing so. It is one of the homeowners laws associations must follow. Homeowners have a right to place solar panels, antennas, and satellite dishes on their roof (as long as the device is under a meter). However, boards may be able to place some restrictions such as the placement of these devices.
  12. Homeowners Have a Right to Native Plants
    In some states, homeowners associations can’t prohibit residents from growing or planting native plants. Examples of states that have these restrictions for HOA rules for plants are California and Texas. In Florida, on the other hand, associations can’t restrict homeowners from using plants that don’t coincide with the overall landscaping design of the community.

How to Handle the Legal Rights of Homeowners Against HOA
Apart from these 13 legal homeowners rights against HOA, there may be many more for HOA boards to consider. Though the actual number may seem daunting, HOA board members must always try to keep track of these legal HOA rights. In order to properly handle the legal homeowner rights in HOA communities, here are three simple but important reminders:

  1. HOA board members must take time to read and fully understand the community’s governing documents (CC&Rs, bylaws, HOA rules, and regulations).
  2. HOA board members should be updated on state and local laws. If there are any changes, you must amend governing documents as quickly as possible.
  3. HOA disputes and misunderstandings can lead to expensive legal proceedings if not addressed in a timely manner. For the sake of both parties, HOA board members should take time to communicate with homeowners in a professional but cordial manner.

Frequently Asked Questions

What rights does a homeowner have against an HOA?
Homeowners have a plethora of rights against an HOA, including the Right of Possession, the Right of Control, the Right of Exclusion, the Right of Enjoyment, and the Right of Disposition. Homeowners also have a right to change HOA rules and regulations, a right to question HOA fees and special assessments, a right to access HOA documents and financial reports, and a right to disciplinary hearings.
Beyond that, homeowners have a right to sue the HOA, a right to display the U.S. flag and political signs (within reason), a right to reasonable accommodations, a right to be treated fairly, a right to solar installations and satellite dishes, a right to solar drying, and a right to native plants.

Can a homeowner sue their HOA?
It is definitely well within a homeowner’s right to sue their HOA. Keep in mind, though, that homeowners need evidence to support their allegations. Additionally, HOAs have insurance policies that cover such liabilities, and the homeowner might need to pay for damages and legal fees if they lose.

Can HOA control backyard?
Some associations can implement HOA backyard rules, provided state laws or their governing documents allow them to do so. But, when it comes to native plants, some states offer protection to homeowners.

What legal authority does a homeowners association have?
The legal authority of homeowners associations is bestowed upon them by state law and their governing documents. The extent of this authority can vary from HOA to HOA, though, so homeowners must check to make sure.

How do I fight back against my HOA?
Homeowners have a handful of options if they don’t agree with the HOA. Most of the time, homeowners can have their concerns addressed by simply approaching the HOA board with a formal complaint. In some cases, homeowners will need to enter mediation or arbitration to resolve the dispute with the HOA. Of course, if the matter remains unresolved and the homeowner believes the HOA is in the wrong, they can pursue litigation.

Can HOA legally fine you?
Most homeowners associations can legally fine residents when they violate the governing documents. This is a common consequence or penalty used to discourage breaches. But, an HOA can only impose fines if state laws or its governing documents give them the power to do so.

Why HOAs Need to Respect the Legal Rights of Homeowners
Respecting the legal homeowners rights against HOA isn’t just the right thing to do, it’s also one of the best ways to protect the wellbeing of your community. In the same way that HOA board members have protection from personal liability, homeowners also have legal rights as members of the community. If everyone is respectful of each other, you will be able to have a peaceful and thriving community.

Fences must be a certain height. For example, your HOA may mandate that fences are no less than six feet (6′) tall and individual slats no more than nine inches (9”) wide. Fences may be required to be positioned a certain amount off of property lines. This is referred to as a setback

Let’s take a look at the many things a homeowner needs to be aware of when it comes to making any changes to fencing in an HOA:
Boundary Fences

When a backyard fence splits the property lines between neighbors, it is defined as a boundary fence. Every homeowner shares dual ownership of the allotted portion of a boundary fence existing on their respective property (meaning that your neighbors have the same rights to the shared fence as you do), so if you’re planning on repairing or replacing the fence, you need to be familiar with your property survey or plat. This way, you can be sure that you don’t infringe on your neighbor’s property line. Also, you should communicate with your neighbor about your plans well in advance to avoid any issues or confrontations that may occur over the boundary fence.
Regulations and Guidelines to Be Aware Of

There are local, county, and state laws that dictate specific limitations when it comes to backyard fences. Most often, fences are the subject of the HOA. Because most local fence laws tend to be loosely imposed, your HOA regulations must be strictly enforced.

Below are a few common guidelines for fences:

Fences must be a certain height. For example, your HOA may mandate that fences are no less than six feet (6’) tall and individual slats no more than nine inches (9”) wide.
Fences may be required to be positioned a certain amount off of property lines. This is referred to as a setback. Check your plat or property survey to assess where the fence can be constructed and practice proper fence etiquette by making sure the smooth side of the fence faces outward toward your neighbors or the street.

Steps to Fence Modification

When you live in an HOA, there are certain processes that must be followed in accordance with your governing documents. You also must be considerate of your neighbors. Once you’ve come to an agreement with your neighbor(s) about the fence, there are at least three steps you’ll need to take prior to making any changes to, or adding a boundary fence:

Communicate with your neighbor(s) prior to making any changes to the boundary fence! If change is not wanted by anyone but yourself, then you may have a problem on your hands. The last thing you want to do is cause friction between your immediate neighbors and yourself. Make sure everyone is on board. This may mean that you agree to pay for the cost, compromise on stain colors, etc.
Get the approval of your HOA’s architectural control committee (ACC) prior to starting any work. Many associations require a certain aesthetic for fences, so it’s important to check the HOAs bylaws for specific requirements. If you fail to receive prior approval from the ACC to complete your fencing project, you may find yourself dealing with violations, fines, and fees, or even a lawsuit!
Obtain proper permits from the county in order to modify or construct your backyard fence. Your application must be approved before you can start the project.
Hire a reliable local contractor who understands local zoning regulations. They can help you avoid any future potential problems by reviewing regulations and building a fence that is safe and acceptable.

Constructing HOA-Friendly Fences

Once you have completed the appropriate steps and obtained the proper permits, it’s time to get to work on your new fence! Because HOAs can control, to some degree, the type of fence you construct and the material used, there are certain factors the association tends to look for:
Aesthetics

Style and uniformity is often considered very important when it comes to HOA fencing. Many associations require all properties within the community to keep a certain appearance to remain looking uniform and pleasing. Whether it be modern or elegant, stucco or wood, the type and style of fence may have to fall in line with what other properties are using. It’s vital that you understand your HOAs guidelines so that you avoid any unpleasant situation or extra costs associated with having to replace your brand new fence!
Safety and Visibility

When it comes to fencing, safety is a top concern. Restrictions on fence height are often related to visibility issues. HOAs must consider fences that do not obstruct a driver’s view at intersections and/or promote neighborhood safety.
Preserving Views

It’s no secret that most HOAs invest in landscaping and certain aesthetic features, such as meticulous greenbelts or man-made pond. These environments lend to the overall appeal of the community. Many will be unhappy if a fence were to interfere with or obstruct this carefully constructed landscape! For this reason, privacy-style fences may be prohibited in favor of shorter fences with narrow slats, or some similar style that promotes visibility.
Protecting Nature

Many cities have enacted ordinances pertaining to the preservation of lakes, trees, and other landscapes. In many areas, you are required to build fencing around trees or plant buses along the street-facing side of a fence when it backs up to a sidewalk or faces the main roadway.
Fencing Disputes, Variances, and Zoning Issues

In the event that you run into any issues, variances may be granted (in some cases). Investigate your state’s statutes and find out what your county’s zoning ordinances are. Also, carefully review the association’s CC&Rs and/or bylaws.

Here are a few examples that may warrant such actions:

You need a fence that is taller than the law allows. If your neighbor agrees to this, you may be able to obtain a variance.
You recently purchased your home and the current fence seems to violate the laws that you’ve researched. You feel the fence needs to come down. If the fence was built prior to the law, the fence can remain. If you’ve educated yourself on the law and know the history of the fence, you are in a better position to take action as needed.
If your neighbor is the one pursuing a modification to a boundary fence and you’re the one who is not in favor of the construction, you can voice your concerns directly to the neighbor or contact your HOA board.

Fence Maintenance

Once you’ve constructed or modified your fence, you’ll need to ensure that the fence is kept clean and safe at all times. Everything should be in proper working order and nothing should be unsightly or left damaged (think latches and hardware, splintering boards, weather damage, etc.). This will prevent any future problems with your neighbors and alleviate the potential for any site drive violations.

Properly maintained fences are also a good indicator of how well the overall neighborhood is maintained. When shopping for a new home, buyers are often influenced by the condition of the fences in the community. Fences can greatly influence property values!

By taking the time to follow proper procedure, obtain the necessary permits and approvals, hire a qualified contractor, and by following the tips above, you can rest assured that you’ve done your part to improve the fencing on your property. Now it’s time to enjoy your new fence! Contact Spectrum Association Management today to learn more about our highly reviewed HOA property management services and get a free quote for your community.
Related: Now that you’re aware of what actions to take before making any changes to your fencing. You should also choose the best company when it comes to your home Insurance. 

We are here to serve you. Consultations outside of our Atlanta Fence Company free area will incur a nominal mileage fee. for more information or to setup a consultation give us a call 770-277-4725 Today to talk with our friendly professional staff about a free no obligation estimation at your home or business at a time that is convenient to your schedule. You may contact us by text: 770 376-7140 with any questions or comments you may have. Or You may request a free quote online. We look forward to discussing your plans about installing or repairing your fence. Thank You! so-much for stopping by.