When Is a Montana HOA Rule Unenforceable?

A board can announce a rule, but announcing it is not the same as being able to enforce it. In Montana — with a concise condominium statute and no general HOA act — much of the substance comes from your declaration, and a rule still has to clear several hurdles before it binds a homeowner. For your specific situation, a licensed Montana attorney is the right resource. This is general information, not legal advice.

The general tests, and where Montana'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 are explained in When Is an HOA Rule Unenforceable?.

In Montana, the authority to make and enforce rules comes primarily from the recorded declaration and bylaws. For condominiums, the Unit Ownership Act adds a duty to comply: "each unit owner shall comply with the bylaws and with the rules adopted pursuant to the bylaws and with the covenants, conditions, and restrictions in the declaration or in the deed to the owner's unit" (§ 70-23-506). That duty opens with "Except as provided in 70-1-522," the political-sign statute below. For incorporated HOAs, the Montana Nonprofit Corporation Act (Title 35, Ch. 2) governs the corporation and the board's fiduciary duties.

Can my HOA ban political signs in Montana?

No. Under MCA § 70-1-522, a homeowners' or property owners' association may not prohibit signs about candidates or ballot issues on property of owners who authorize them, or in common areas where an owner owns an undivided interest. It may still limit sign size and regulate location and display time, and a court may not enforce a conflicting covenant.

Under MCA § 70-1-522(1), a homeowners' or property owners' association "may not, as a condition of property ownership within the jurisdiction of the private entity or by other means, prohibit the placement of a sign advocating the election, appointment, or defeat of a candidate for public office or the passage or defeat of a ballot issue." The protection covers property belonging to owners "who authorize the placement of the sign" and "common areas in which an owner owns an undivided interest." An association may still "impose limits on the size of signs allowed to be displayed" and "regulate the location of sign placement and the time period during which signs may be displayed" (§ 70-1-522(2)). A covenant or other provision that conflicts with the section "is contrary to the public policy of this state," and "a court may not enforce the terms" of it (§ 70-1-522(3)).

Can a Montana HOA restrict my home's use after I buy?

Not with a more onerous use restriction, unless you agree in writing. Under MCA § 70-17-901, an HOA may not adopt, amend or enforce use restrictions stricter than when the member acquired the property without the member's written agreement. Restrictions required by law are excluded, the owner must request recording of the exception, and later buyers generally can't claim it.

Under MCA § 70-17-901(1)(a), a homeowners' association "may not enter into, amend, or enforce a covenant, condition, or restriction in such a way that imposes more onerous restrictions on the types of use of a member's real property than those restrictions that existed when the member acquired the member's interest in the real property, unless the member who owns the affected real property expressly agrees in writing at the time of the adoption or amendment" of the restriction. "Types of use" means lawful use "for residential, agricultural, or commercial purposes," "the ability to rent the real property … for any amount of time," and the ability to develop it under applicable law (§ 70-17-901(6)(e)).

A few limits matter:

• Recording the exception. An owner who claims the benefit "shall request that the homeowners' association record, or allow recording of, the exception applicable to the member," providing the conveyance date and paying the recording fees (§ 70-17-901(1)(b)).
• Later buyers. A successor generally "may not claim the benefit" for restrictions adopted before they bought, even if those restrictions couldn't be enforced against the prior owner. The exceptions are a successor that shares ownership with the previous member and a lender that took the property through foreclosure (§ 70-17-901(2)).
• What's excluded. The section does not reach restrictions the association can't enforce, or ones "required in order to comply with applicable federal, state, and local laws" (§ 70-17-901(3)).
• Timing. It does not create a private right of action "for actions or omissions occurring before May 9, 2019" (§ 70-17-901(5)).

Where to turn

Because the substance lives in the declaration, owners often start by reading the recorded documents next to the adopted rule. A records request can reach the adopted rules and the minutes showing how a rule was passed. 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 Montana attorney to evaluate whether a specific rule is enforceable against a specific owner.

Sources

• MCA § 70-17-901 — Homeowners' association restrictions; real property rights
• MCA § 70-1-522 — Certain restrictions on political free speech contrary to public policy
• MCA § 70-23-506 — Compliance with bylaws, rules, and covenants required
• MCA Title 35, Chapter 2 — Montana Nonprofit Corporation Act