When Is an Ohio HOA Rule Unenforceable?

Not every Ohio HOA rule holds up. Some collide with the Planned Community Act; others exceed the governing documents; others conflict with federal law. Knowing the categories helps. For your specific situation, a licensed Ohio attorney is the right resource. This is general information, not legal advice.

For the general framework that applies across states (where rule power comes from, adoption, reasonableness, and federal overrides), see When Is an HOA Rule Unenforceable?.

Can my HOA ban solar panels in Ohio?

It depends on the declaration. Under ORC § 5312.16, part of Ohio's Planned Community Act, unless the declaration specifically prohibits them, an owner may install solar energy collection devices on the dwelling or lot if the owner, not the association, bears the roof's upkeep costs, or the declaration specifically allows and regulates solar. Reasonable size, place and manner restrictions remain allowed.

Section 5312.16(A) opens: "Unless specifically prohibited in the declaration, any owner may install a solar energy collection device on the owner's dwelling unit or other location within the owner's lot" if either of two conditions applies. One is that the cost to insure, maintain, repair, and replace the roof or other location "is not a common expense of the owners association and is instead the owner's responsibility." The other is that the declaration "specifically allows for and regulates the types and installation of solar energy collection devices." Under § 5312.16(B), an association "may establish reasonable restrictions concerning the size, place, and manner of placement" of the devices. So a board rule banning solar outright, where the declaration doesn't prohibit it, runs against § 5312.16; a prohibition written into the declaration itself is treated differently.

Rules must be grounded in the declaration

Section 5312.13 requires owners and others in possession to comply with "any covenant, condition, and restriction set forth in any recorded document to which they are subject, and with the bylaws and the rules of the owners association, as lawfully amended." A board rule that goes beyond what the declaration authorized the board to regulate — one that addresses a topic the governing documents never gave the board power to control — lacks the necessary foundation.

Section 5312.11(A)(1) similarly covers enforcement assessments "imposed or levied in accordance with the declaration". An enforcement assessment for something the declaration doesn't authorize is challengeable on that ground.

The hearing-right can't be waived by rule

The written-notice and hearing requirements of § 5312.11 are statutory. A board-adopted rule purporting to let the board skip notice or deny a hearing before imposing a fine would conflict with the Act and is unenforceable to that extent. (For governing documents that existed on September 10, 2010, § 5312.15 says the document controls in a specific conflict with its express requirements.)

Can my Ohio HOA or condo ban a flagpole for the U.S. flag?

It depends on whether the community is a condominium. For condos, ORC § 5311.191 provides that no declaration, bylaw, or rule "shall prohibit" the "placement of a flagpole" for the U.S. or POW/MIA flag on a unit owner's limited common area or the immediately adjacent exterior. The Planned Community Act (chapter 5312) has no equivalent flagpole statute.

Federal protections sit above any HOA rule:

• The Fair Housing Act — reasonable accommodations for disabilities (including assistance animals) and protection against discrimination based on familial status and other protected categories
• The Freedom to Display the American Flag Act — protects displaying the U.S. flag
• OTARD (FCC) — limits on banning satellite dishes and antennas
• The Servicemembers Civil Relief Act — protections for active-duty military

One Ohio-specific wrinkle on flags is worth flagging: the statute that protects a flagpole for the U.S. flag (and the POW/MIA flag) is § 5311.191, and it sits in the Condominium Act — chapter 5311. It provides that no condominium declaration, bylaw, or rule "shall prohibit" the "placement of a flagpole" for displaying those flags on a unit owner's limited common area or the immediately adjacent exterior. The Planned Community Act (chapter 5312) has no equivalent flagpole statute, so owners in a planned community rely on the federal Freedom to Display the American Flag Act and their own governing documents rather than a parallel Ohio provision. Which chapter applies to a given community is a question for a licensed Ohio attorney.

What owners in Ohio generally do

People who think a rule is unenforceable compare the rule against the declaration and the statutes above, request the records showing how and when the rule was adopted, raise the conflict in writing, and consult a licensed Ohio attorney — particularly where a federal statute, a protected category, or the § 5312.11 hearing right is at issue.

Sources

• ORC § 5312.16 — Solar energy collection devices
• ORC § 5312.11 — Individual lot assessments
• ORC § 5312.13 — Compliance with covenants
• ORC § 5311.191 — Flag and flagpole display (Condominium Act)
• ORC ch. 5312 — Ohio Planned Community Act