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.

Where the rulemaking power comes from

In Montana, the authority to make and enforce rules comes primarily from the recorded declaration and bylaws (and, for condominiums, MCA Title 70, Ch. 23). For incorporated HOAs, the Montana Nonprofit Corporation Act (Title 35, Ch. 2) governs the corporation and the board's fiduciary duties. A purported 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 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 reasonable. Reasonableness runs through how Montana courts evaluate restrictive covenants and rules.
• The rule collides with higher law. Federal law — the Fair Housing Act (disability accommodations, familial status), the ADA, the Servicemembers Civil Relief Act, OTARD (satellite antennas), or the Freedom to Display the American Flag Act — can override a conflicting HOA rule. Montana law adds a state-specific override for political speech (below).

Political signs are protected (§ 70-1-522)

Montana treats an outright HOA ban on political signs as void. Under MCA § 70-1-522, a homeowners' or property owners' association "may not, as a condition of property ownership," prohibit an owner who authorizes it from placing "a sign advocating the election, appointment, or defeat of a candidate for public office or the passage or defeat of a ballot issue" on the owner's property or in common areas the owner holds an undivided interest in. The statute declares that any "covenant, contract term, or other provision restricting political speech … is contrary to the public policy of this state, and a court may not enforce such terms." An association may still impose reasonable limits on a sign's size, its location, and the time period it is displayed — but not a flat prohibition.

Montana's protection for existing owners (§ 70-17-901)

Montana has one statute aimed squarely at this kind of overreach. Under MCA § 70-17-901, 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" — "unless the member who owns the affected real property expressly agrees in writing." "Types of use" includes use for residential, agricultural, or commercial purposes, the ability to rent the property, and the ability to develop it under applicable law. In short, a newly adopted or tightened use restriction generally cannot be enforced against an owner who was already there and did not consent. (A later purchaser usually cannot claim the benefit for restrictions that predate their purchase.)

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. Owners commonly document neighbors with the same condition who were never cited.

Start with the actual documents

Because the substance lives in the declaration, the first step when a rule seems questionable is reading the recorded documents and the adopted rule together. A records request 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 Montana.

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, 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
• Fair Housing Act — U.S. Department of Housing and Urban Development