When Is an Arkansas HOA Rule Unenforceable?

A board can announce a rule, but announcing it is not the same as being able to enforce it. In Arkansas — where the Horizontal Property Act is opt-in and concise — a rule has to clear several hurdles before it binds a homeowner, and almost all of them live in the documents and in the Nonprofit Corporation Act. For your specific situation, a licensed Arkansas attorney is the right resource. This is general information, not legal advice.

Where rulemaking power comes from

In Arkansas, the board's rulemaking power flows from:

• The recorded declaration / master deed — almost always the ceiling on what the association can regulate
• The bylaws — the procedure for how rules get adopted
• The Horizontal Property Act (§§ 18-13-101 et seq.) where the community opted in
• The Arkansas Nonprofit Corporation Act of 1993 (§ 4-33) — board fiduciary duties for incorporated HOAs
• General Arkansas contract and property law — covenants enforced as agreements among owners

A "rule" the board never validly adopted, or one that exceeds the authority in the declaration, stands on weaker ground.

Common reasons a rule may not be enforceable

Homeowners and attorneys often examine whether:

• The rule was properly adopted. Boards generally must follow the rulemaking procedure in the bylaws. A rule announced informally — by email, at a board meeting that wasn't validly noticed — may not have been validly enacted.
• The rule is consistent with the declaration. A rule cannot contradict the recorded declaration; where they conflict, the declaration generally controls.
• The rule is a reasonable exercise of fiduciary duty. Under the Nonprofit Corporation Act, directors owe duties of good faith and ordinary prudence. An arbitrary or punitive rule can implicate those duties.
• The rule collides with higher law. Federal law — for example the Fair Housing Act (disability accommodations, familial status), ADA, Servicemembers Civil Relief Act, OTARD (satellite antennas), or the Freedom to Display the American Flag Act — can override a conflicting HOA rule.

Selective enforcement

Even a valid rule can fail in the way it's applied. When an association enforces a restriction against one owner while ignoring identical conduct elsewhere, that uneven enforcement can raise a selective enforcement problem. Arkansas treats covenants as agreements among owners; courts considering selective-enforcement arguments have looked at whether other comparable violations exist, whether the board knew about them, and whether one owner is being singled out.

Owners commonly document neighbors with the same condition who were never cited — photos, dates, and addresses — because a concrete pattern is what makes the argument land.

Start with the actual documents

Because Arkansas leaves so much to the documents, the first step when a rule seems questionable is reading the recorded declaration / master deed and the adopted rule together. A records request under the Nonprofit Corporation Act can reach the adopted rules, the minutes showing how (or whether) a rule was passed, and any fine schedule. If a fine is attached, see also Fighting an HOA Fine in Arkansas.

Where to turn

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 (which enforce covenants as contracts), and a licensed Arkansas attorney to evaluate whether a specific rule is enforceable against a specific owner.

Sources

• Ark. Code § 4-33 — Nonprofit Corporation Act of 1993 (overview)
• Ark. Code §§ 18-13-101 to 18-13-120 — Horizontal Property Act (chapter)
• Fair Housing Act — U.S. Department of Housing and Urban Development