When Is an Alabama HOA Rule Unenforceable?

A board can announce a rule, but announcing it is not the same as being able to enforce it. In Alabama, a rule has to clear several hurdles before it binds a homeowner — and the hurdles look different depending on whether your community falls under the 2016 HOA Act or operates under older law. For your specific situation, a licensed Alabama attorney is the right resource. This is general information, not legal advice.

The general tests, and where Alabama's rule power comes from

The tests that apply in most states also apply here: a rule generally has to be properly adopted, consistent with the recorded declaration, and reasonable, and it can't conflict with federal law such as the Fair Housing Act, the FCC's OTARD antenna rule, or the Freedom to Display the American Flag Act. Those tests, and how uneven enforcement is treated, are explained in When Is an HOA Rule Unenforceable?.

Which Alabama framework applies depends on the community. The Alabama Homeowners' Association Act (Ala. Code §§ 35-20-1 to 35-20-14) "applies to all developments subject to a declaration providing for a homeowners' association recorded in the office of the judge of probate … on or after January 1, 2016, and any association formed prior to that time, provided the association, by a majority of its members, elects to be governed by this chapter" (§ 35-20-3(a)). It does not apply to commercial, industrial, or other nonresidential developments, to associations "subject to regulation under Chapters 8 or 8A" of Title 35 (the condominium statutes), or to a real estate cooperative, time-share development, or campground (§ 35-20-3(b)). For HOAs outside the Act, the rule power comes from the recorded declaration and bylaws, with the Alabama Nonprofit Corporation Law governing an incorporated association.

Can my HOA fine me without a hearing in Alabama?

Not without a chance to be heard, if the 2016 HOA Act applies. Under Ala. Code § 35-20-11, to the extent the governing documents authorize it, the board may assess reasonable penalties after the member is afforded the opportunity to be heard and represented by counsel before the board. The Act covers declarations recorded since January 1, 2016, and opted-in associations.

Under the Act, the board's enforcement powers run only "to the extent authorized by the declaration and governing documents" (§ 35-20-11(a)). Within that limit, the board may "Assess reasonable penalties against a member for any violation of the declaration or rules adopted by the board of directors after the member is afforded the opportunity to be heard and represented by counsel before the board of directors" (§ 35-20-11(a)(2)).

If a member's tenant violates the declaration or rules, the board may assess a penalty directly against the tenant "after giving notice to the tenant and member and an opportunity to be heard before the board of directors" (§ 35-20-11(b)(2)). The amount of any penalty "shall be considered an assessment for purposes of Section 35-20-12" (§ 35-20-11(c)).

Can my HOA ban the U.S. or Alabama flag?

Generally, no. Under Ala. Code § 35-1-5, notwithstanding any covenant, a person may display a current U.S. flag up to 40 square feet on their property; a contrary restriction is void. § 35-1-5.1 bars HOAs from restricting a member's Alabama flag on property the member owns or exclusively uses, subject to reasonable time, place, or manner restrictions for a substantial interest.

For the U.S. flag, "Notwithstanding any covenant, contract, or restriction to the contrary, a person may exhibit or display on his or her property a current flag of the United States not to exceed 40 square feet in size" (§ 35-1-5(a)). A covenant, contract, or restriction that prohibits flying the flag in line with that subsection, "whether adopted before or after May 21, 2009, is void as a violation of public policy" (§ 35-1-5(b)).

For the state flag, a condominium association, homeowner's association, or unit owners' association "may not adopt or enforce any policy, or enter into any agreement, that would restrict or prevent a member of the association from displaying the flag of the State of Alabama within the association on property in which the member has a separate ownership interest or a right to exclusive possession or use" (§ 35-1-5.1(b)). The section still allows "any reasonable restriction on the time, place, or manner of displaying the flag of the State of Alabama necessary to protect a substantial interest" of the association (§ 35-1-5.1(c)).

Where to turn

Owners often start by reading the recorded declaration and bylaws next to the adopted rule. For HOAs under the Act, a records request under § 35-20-13 reaches, among other items, "A copy of the current covenants, conditions, and restrictions adopted by the association along with any amendments, modifications, restatement, or supplement and current architectural control regulations" (§ 35-20-13(b)(7)). If a fine is attached, see also Fighting an HOA Fine in Alabama. When a homeowner believes a rule is invalid or is being enforced unevenly, the avenues include raising it with the board in writing, the courts, and a licensed Alabama attorney to evaluate whether a specific rule is enforceable against a specific owner.

Sources

• Ala. Code § 35-20-3 — Applicability of chapter
• Ala. Code § 35-20-11 — Powers of board
• Ala. Code § 35-20-13 — Records
• Ala. Code § 35-1-5 — Display of United States flag
• Ala. Code § 35-1-5.1 — Display of state flag on certain residential property