When Is a Pennsylvania HOA Rule Unenforceable?

Not every rule a Pennsylvania board announces is automatically enforceable. A rule has to come from somewhere — the authority granted by the declaration and the Uniform Planned Community Act (UPCA, 68 Pa.C.S. Ch. 51–54) — and it has to be applied to everyone the same way. When a rule strays outside that authority or is enforced selectively, its enforceability is open to question. For your specific situation, a licensed Pennsylvania attorney is the right resource. This is general information, not legal advice.

The general tests, and where Pennsylvania'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?.

In Pennsylvania, the rule power comes from § 5302(a). "Except as provided in subsection (b) and subject to the provisions of the declaration and the limitations of this subpart, the association, even if unincorporated, may," among other things, "Adopt and amend bylaws and rules and regulations" (§ 5302(a)(1)). Both limits matter: a rule has to fit the declaration, and it can't cut below what UPCA guarantees. Under § 5104, "provisions of this subpart may not be varied by agreement, and rights conferred by this subpart may not be waived."

The same list covers accommodations: the association may "make reasonable accommodations or permit reasonable modifications to be made to units, the common facilities, the controlled facilities or the common elements, to accommodate people with disabilities" (§ 5302(a)(6)).

Does Pennsylvania's HOA law cover older or small communities?

Only in part. Under 68 Pa.C.S. § 5102, a planned community of no more than 12 units not subject to certain development rights is subject to only four UPCA sections unless its declaration adopts the whole subpart. Pre-UPCA communities are subject to listed sections, including § 5302's rule and fine powers, only for later events, without invalidating existing document provisions.

UPCA applies in full to planned communities created after it took effect, with exceptions:

• Small communities. A planned community that "contains no more than 12 units" and isn't subject to certain development rights is subject only to four sections of UPCA "unless the declaration provides that the entire subpart is applicable" (§ 5102(a)(1)).
• Older communities. For planned communities created before UPCA, listed sections still apply, including "5302(a)(1) through (6) and (11) through (15)" (the rule, accommodation, and fine powers on this page) and § 5315 (the lien). They "apply only with respect to events and circumstances occurring after the effective date of this subpart and do not invalidate specific provisions contained in existing provisions of the declaration, bylaws or plats and plans of those planned communities" (§ 5102(b)).

Fines and suspensions require notice and a hearing (§ 5302(a)(11))

Even a valid rule does not produce a valid fine unless the association follows the process. The association may "Impose charges for late payment of assessments and, after notice and an opportunity to be heard":

• "Levy reasonable fines for violations of the declaration, bylaws and rules and regulations of the association" (§ 5302(a)(11)(i)); and
• "For any period during which assessments are delinquent or violations of the declaration, bylaws and rules and regulations remain uncured, suspend unit owners' rights, including, without limitation, the right to vote, the right to serve on the board or committees and the right of access to common elements, recreational facilities or amenities" (§ 5302(a)(11)(ii)).

A fine or suspension imposed without that notice and hearing, or a fine that is not "reasonable," is open to challenge on its own terms, apart from whether the underlying rule is sound. That matters in Pennsylvania because fines feed the lien: "The association has a lien on a unit for any assessment levied against that unit or fines imposed against its unit owner from the time the assessment or fine becomes due," and "The association's lien may be foreclosed in a like manner as a mortgage on real estate" (§ 5315(a)). See the association's lien and Challenging an HOA Fine in Pennsylvania.

Can my HOA ban the American flag in Pennsylvania?

No. Act 93 of 2006, § 3(a), bars associations from prohibiting the outdoor display of one American flag, Commonwealth flag and military flag on property the owner owns or exclusively controls, or the attached exterior wall. Associations may regulate flagpole location, size and use but not ban wall brackets, and flags "shall not be larger than five feet by three feet."

A 2006 state law (Act 93) overrides association documents on flags. "Notwithstanding any provision in the association's declaration, covenants, bylaws, rules, regulations or other instruments or any construction of any of those instruments by an association's executive board, an association may not prohibit the outdoor display of one American flag, Commonwealth flag and military flag by a unit owner on that unit owner's property or property within the exclusive control of a unit owner or that portion of an exterior wall directly attached to the unit" (Act 93 of 2006, § 3(a)). The American flag has to be displayed consistent with the federal flag code, and the Commonwealth and military flags in line with the association's rules.

The association keeps some say: it "may adopt rules and regulations regarding the location, size and use of a flagpole but cannot prohibit the use of wall brackets to display the American flag, Commonwealth flag and military flag," and the flags "shall not be larger than five feet by three feet" (§ 3(a)). Its definitions of the American and military flags cover flags "made of fabric, cloth or paper displayed from a staff or flagpole or in a window" (§ 2).

Where to turn

Owners questioning a Pennsylvania rule often trace it back to the specific declaration or bylaw provision that authorizes it, and check whether any fine followed the § 5302(a)(11) notice-and-hearing process. The association's own records and minutes are usually where a pattern of uneven enforcement surfaces, and raising the issue in writing and at the association's meeting puts it on the record. Before a disputed fine feeds the assessment account and lien, a licensed Pennsylvania attorney is the right resource to evaluate whether a specific rule is enforceable against a specific owner.

Sources

• 68 Pa.C.S. § 5102 — Applicability
• 68 Pa.C.S. § 5104 — Variation by agreement
• 68 Pa.C.S. § 5302 — Power of unit owners' association
• 68 Pa.C.S. § 5315 — Lien for assessments
• American, Commonwealth and Military Flag Act (Act 93 of 2006)