When Is a Kansas HOA Rule Unenforceable?

A board can announce a rule, but announcing it is not the same as being able to enforce it. In Kansas, the Uniform Common Interest Owners Bill of Rights Act (KUCIOBORA), K.S.A. 58-4601 et seq., sets out how covered associations adopt rules and what those rules may reach, and the recorded declaration supplies much of the rest. For your specific situation, a licensed Kansas attorney is the right resource. This is general information, not legal advice.

The general tests, and where Kansas'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?.

KUCIOBORA applies to common interest communities "that contain 12 or more units that may be used for residential purposes" (K.S.A. 58-4605, 58-4606). For those communities, the Act itself gives the rule power: the association shall "Adopt and may amend bylaws and may adopt and amend rules" (K.S.A. 58-4608(a)(1)). A "rule" is "a policy, guideline, restriction, procedure, or regulation of an association, however denominated, which is not set forth in the declaration or bylaws and which governs the conduct of persons or the use or appearance of property" (K.S.A. 58-4602(m)).

The Act's protections can't be contracted away. Its provisions "shall be mandatory and apply notwithstanding contrary provisions in the declaration or bylaws of a common interest community and shall not be varied or waived by agreement" (K.S.A. 58-4603). For communities created before the Act, existing documents stay in place, but provisions "that are contrary to the mandatory provisions of this act, and amendments thereto, may not be enforced with respect to events and circumstances occurring after the effective date of the act" (K.S.A. 58-4606(b)). Smaller communities fall outside the Act, and their rule power comes from the declaration and bylaws alone.

Can a Kansas HOA adopt a new rule without notice?

Not in a KUCIOBORA community (12 or more residential units). Under K.S.A. 58-4617(a)–(b), before adopting, amending or repealing any rule, the board must give all unit owners notice of its intention, the rule's text or proposed change, and the date it will act after considering their comments, then notify owners and provide any new or revised rule.

"Before adopting, amending, or repealing any rule, the board of directors shall give all unit owners notice of" its "intention to adopt, amend, or repeal a rule and provide the text of the rule or the proposed change," and "a date on which the board of directors will act on the proposed rule or amendment after considering comments from unit owners" (K.S.A. 58-4617(a)). After acting, "the association shall notify the unit owners of its action and provide a copy of any new or revised rule" (K.S.A. 58-4617(b)).

The vote itself happens in the open. "Meetings of the board of directors and committees of the association authorized to act for the association must be open to the unit owners except during executive sessions," and "No final vote or action may be taken during an executive session" (K.S.A. 58-4612(a)). See Attending HOA Meetings in Kansas.

What a rule may reach (K.S.A. 58-4617(c)–(h))

The same section limits the content of rules:

• Rules about homes. Rules "that affect the use of or behavior in units that may be used for residential purposes, shall be adopted only to" either "Implement a provision of the declaration" or "regulate any behavior in or occupancy of a unit which violates the declaration or adversely affects the use and enjoyment of other units or the common elements by other unit owners" (K.S.A. 58-4617(f)).
• Design standards. An association may adopt rules on "construction and design criteria and aesthetic standards if the declaration so provides," and then must adopt approval procedures, "including a reasonable time within which the association must act after an application is submitted and the consequences of its failure to act" (K.S.A. 58-4617(c)).
• Flags and signs. "A rule regulating display of the flag of the United States must be consistent with federal law." The association "may not prohibit display on a unit or on a limited common element adjoining a unit of the flag of this state, or signs regarding candidates for public or association office or ballot questions," though it may adopt rules on "the time, place, size, number, and manner of those displays" (K.S.A. 58-4617(d)).
• Owner gatherings. "Unit owners may peacefully assemble on the common elements to consider matters related to the common interest community," subject to time, place, and manner rules (K.S.A. 58-4617(e)).
• Reasonableness. "Every rule must be reasonable" (K.S.A. 58-4617(h)).

Separately from KUCIOBORA, K.S.A. 58-3820 reaches restrictive covenants generally: a provision "which prohibits the display of political yard signs, which are less than six square feet, during a period commencing 45 days before an election and ending two days after the election is hereby declared to be against public policy and such provision shall be void and unenforceable."

Can a Kansas HOA enforce rules against some owners only?

Not arbitrarily. Under K.S.A. 58-4608(b)–(c), a KUCIOBORA board may decline enforcement, for example where a violation is not material enough to justify spending the association's resources, and that doesn't stop it from enforcing in other circumstances, but it "may not be arbitrary or capricious in taking enforcement action." K.S.A. 58-4604(a) also imposes a good-faith obligation in enforcement.

The board has discretion over whether to enforce. It "does not have a duty to take enforcement action" if it determines, for example, that "the covenant, restriction, or rule being enforced is, or is likely to be construed as, inconsistent with law," or that a violation "is not so material as to be objectionable to a reasonable person or to justify expending the association's resources" (K.S.A. 58-4608(b)). A decision not to enforce in one case "does not prevent the board of directors from taking enforcement action under another set of circumstances, but the board of directors may not be arbitrary or capricious in taking enforcement action" (K.S.A. 58-4608(c)). On top of that, "Every contract or duty governed by this act imposes an obligation of good faith in its performance or enforcement" (K.S.A. 58-4604(a)).

Where to turn

Owners often start by reading the recorded declaration next to the adopted rule and the notice that came with it. The association must keep "all rules currently in effect" and the minutes of board meetings (K.S.A. 58-4616(a)), and those records are available "upon 10 days' written notice reasonably identifying the specific records of the association requested" (K.S.A. 58-4616(b)). See Getting Your HOA's Records in Kansas, and if a fine is attached, Fighting an HOA Fine in Kansas.

Under K.S.A. 58-4621(a), a unit owner or "any other person subject to this act may bring an action to enforce a right granted or obligation imposed by this act, the declaration, or the bylaws," and "The court may award reasonable attorney's fees and costs." 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 Kansas attorney to evaluate whether a specific rule is enforceable against a specific owner.

Sources

• K.S.A. 58-4602 — Definitions
• K.S.A. 58-4603 — Provisions mandatory
• K.S.A. 58-4604 — Duty of good faith
• K.S.A. 58-4605 — Application of act
• K.S.A. 58-4606 — Prospective application; supersedes existing provisions
• K.S.A. 58-4608 — Association duties; board of directors discretion
• K.S.A. 58-4612 — Open meetings
• K.S.A. 58-4616 — Records open to unit owners
• K.S.A. 58-4617 — Rules; adoption procedures; notice
• K.S.A. 58-4621 — Enforcement of rights
• K.S.A. 58-3820 — Restrictive covenants; political yard signs