When Is a Nebraska HOA Rule Unenforceable?

A board can announce a rule, but announcing it is not the same as being able to enforce it. In Nebraska, a rule has to clear several hurdles before it binds a homeowner — and the hurdles look a little different depending on whether your community is a condominium or a non-condominium HOA. For your specific situation, a licensed Nebraska attorney is the right resource. This is general information, not legal advice.

Where the rulemaking power comes from

For condominiums, the Nebraska Condominium Act addresses the board's authority, including its powers under §76-857, exercised consistent with the declaration. For non-condominium HOAs, the rulemaking power comes from the declaration and bylaws, with the Nonprofit Corporation Act governing the corporation. Either way, 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 (and, for condos, in the Condominium Act). 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 (and any fine attached) is reasonable. Reasonableness runs through how Nebraska 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.

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 property statute leaves much to the declaration and bylaws, 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 Nebraska.

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 Nebraska attorney to evaluate whether a specific rule is enforceable against a specific owner.

Sources

• Neb. Rev. Stat. §76-857 — Powers of the association
• Neb. Rev. Stat. §76-876 — Association records
• Fair Housing Act — U.S. Department of Housing and Urban Development