When Is an HOA Rule Unenforceable?

An HOA rule can be announced, posted, and even fined on, and still not be enforceable. Across the states, the same handful of questions decide most disputes: did the association have the power to make the rule, did it adopt the rule the way its documents require, does the rule conflict with the declaration or with the law, and is it reasonable? This guide walks through those questions in general terms and points to the state guides for the details that vary. Whether a particular rule binds a particular owner depends on the documents and the state, so for your specific situation, a licensed attorney in your state is the right resource. This is general information, not legal advice.

Where does an HOA's rule power come from?

An association's power to make rules isn't free-standing. It flows down a chain: the law at the top, then the recorded declaration (often called the CC&Rs), then the articles of incorporation and bylaws, and only then the board's rules. A rule sits at the bottom of that chain, so it generally has to fit inside everything above it.

California writes the chain into its statute, which makes it a useful example. Under Cal. Civ. Code § 4205, "to the extent of any conflict between the governing documents and the law, the law shall prevail," "to the extent of any conflict between the articles of incorporation and the declaration, the declaration shall prevail," and "to the extent of any conflict between the bylaws and the articles of incorporation or declaration, the articles of incorporation or declaration shall prevail." Most states have no statute that lays out the order so plainly, but courts and governing documents commonly follow the same basic hierarchy. The HOA bylaws, CC&Rs and rules guide explains what each document does.

What does a rule generally have to clear?

California also lists the tests in one place. Under Cal. Civ. Code § 4350, "an operating rule is valid and enforceable only if all of the following requirements are satisfied":

• "(a) The rule is in writing."
• "(b) The rule is within the authority of the board conferred by law or by the declaration, articles of incorporation or association, or bylaws of the association."
• "(c) The rule is not in conflict with governing law and the declaration, articles of incorporation or association, or bylaws of the association."
• "(d) The rule is adopted, amended, or repealed in good faith and in substantial compliance with the requirements of this article."
• "(e) The rule is reasonable."

Other states reach similar questions through their own statutes, the governing documents, and court decisions, and the details differ. The sections below take the questions one at a time.

Did the board have the authority?

A rule has to trace back to a power the association actually has. In the condominium statutes of many states, that power is written out. The Maine and Nebraska Condominium Acts, for example, let an association "adopt and amend bylaws and rules and regulations," subject to the declaration (33 M.R.S. § 1603-102(a)(1); Neb. Rev. Stat. § 76-860(a)(1)). For a non-condominium HOA in a state without a general HOA statute, the power usually comes from the declaration alone. A rule on a subject the declaration doesn't reach, or one that effectively rewrites the declaration, is the kind of rule owners and attorneys look at first.

Was the rule properly adopted?

Even a rule within the board's power has to be adopted the way the bylaws, and in some states the statute, require. That can mean a vote at a properly noticed meeting, advance notice to owners, or a comment period. A rule announced in an email or newsletter without those steps may never have been validly enacted. Minutes are the usual way to see what was actually voted on, and they are among the records owners can generally request. Some states also have their own rule-change procedures; see Can an HOA Change the Rules After You Buy?.

Does it conflict with the declaration?

Because the declaration sits above the rules, a rule that contradicts it generally loses. A rule that bans something the declaration expressly allows, or that adds a restriction only an amendment to the declaration could impose, is vulnerable on that ground. Amending the declaration usually takes an owner vote, which is a higher bar than a board rule.

Is it reasonable?

Reasonableness runs through how courts in many states review HOA rules, and some statutes, like California's § 4350(e), require it outright. What counts as reasonable is fact-specific: courts commonly look at whether a rule relates to a legitimate purpose of the community and whether its burden is out of proportion to that purpose. Because the standard varies by state and by whether the restriction is in the recorded declaration or only in a board rule, this is one of the questions where a state attorney's view matters most.

Which federal laws override HOA rules?

Some rules fail no matter how they were adopted, because federal law takes them off the table:

• Satellite dishes and antennas. The FCC's OTARD rule reaches "any private covenant, contract provision, lease provision, homeowners' association rule or similar restriction" that impairs the installation, maintenance, or use of covered antennas (generally satellite dishes one meter or less in diameter, and broadcast TV antennas) on property within the owner's exclusive use or control; such a restriction "is prohibited to the extent it so impairs" (47 C.F.R. § 1.4000(a)(1)). See Can an HOA Ban Satellite Dishes?.
• Disability accommodations. Under the Fair Housing Act, discrimination includes "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling" (42 U.S.C. § 3604(f)(3)(B)). See Disability Accommodations in an HOA.
• The U.S. flag. Under the Freedom to Display the American Flag Act of 2005, an association "may not adopt or enforce any policy, or enter into any agreement, that would restrict or prevent a member of the association from displaying the flag of the United States on residential property within the association with respect to which such member has a separate ownership interest or a right to exclusive possession or use" (Pub. L. 109-243, § 3). The Act still allows "any reasonable restriction pertaining to the time, place, or manner of displaying the flag of the United States necessary to protect a substantial interest" of the association (§ 4). See Can My HOA Ban the American Flag?.

Which state laws take specific rules off the table?

Many states add their own overrides on particular subjects, such as political signs, flags, solar panels, rentals, or electric-vehicle chargers. They vary a great deal, so the state guides are the place to check. A few examples, quoted from the statutes:

• Montana, political signs. An 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," though it may limit size, location, and display period (Mont. Code Ann. § 70-1-522).
• Montana, new use restrictions. An 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 agrees in writing (Mont. Code Ann. § 70-17-901(1)(a)).
• Maine, condominium election signs. A condominium's bylaws, declaration, rules, and deeds may not include a restriction "that prohibits a unit owner from displaying on that unit owner's unit a sign that supports or opposes a candidate for public office or a referendum question" from six weeks before the election to one week after (33 M.R.S. § 1603-106).
• Oklahoma, the U.S. flag. An association "shall not adopt or enforce any policy or enter into any agreement that would restrict or prevent a member of the association from displaying the flag of the United States at a reasonable height, not to exceed twenty (20) feet" (60 O.S. § 858).

For overviews across states, see Can My HOA Ban Political Signs?, Can My HOA Ban Solar Panels?, and Can My HOA Prevent Me From Renting My Home?.

What if the rule is enforced unevenly?

A valid rule can still run into trouble in how it's applied. When an association enforces a restriction against one owner while overlooking the same conduct by others, that uneven enforcement can raise a selective enforcement problem, and a long pattern of non-enforcement can raise questions of waiver. These arguments are highly fact-specific. See HOA Selective Enforcement: When Rules Are Enforced Unevenly.

A fine is only as strong as the rule behind it

Fines usually depend on a rule. If the rule falls, a fine for breaking it generally stands on weak ground too. Separately, many states condition fines on their own procedure. The Maine and Nebraska Condominium Acts, for example, allow fines only after notice and an opportunity to be heard (33 M.R.S. § 1603-102(a)(11); Neb. Rev. Stat. § 76-860(a)(11)). See Do I Have to Pay My HOA Fine? and the HOA fines topic.

What owners commonly do

When a rule seems questionable, owners commonly take steps like these:

• Reading the recorded declaration, the bylaws, and the adopted rule side by side, to see where the rule's authority is supposed to come from.
• Requesting the association's records, including the minutes of the meeting where the rule was adopted, under the state's records law or the bylaws.
• Asking the board in writing what provision the rule rests on and when it was adopted, and keeping dated copies.
• If a fine, a lien, or a lawsuit is in play, consulting a licensed attorney in their state about whether the rule is enforceable against them.

Unenforceable rules, state by state

Each state guide covers that state's statutes on rules, overrides, and enforcement. Where a state has no separate page, the link goes to that state's HOA guide.

Alabama · Arizona · Arkansas · California · Colorado · Connecticut · Delaware · Florida · Georgia · Hawaii · Idaho · Illinois · Indiana · Iowa · Kansas · Kentucky · Louisiana · Maine · Maryland · Massachusetts · Michigan · Minnesota · Mississippi · Missouri · Montana · Nebraska · Nevada · New Jersey · New Mexico · New York · North Carolina · North Dakota · Ohio · Oklahoma · Oregon · Pennsylvania · Rhode Island · South Carolina · South Dakota · Tennessee · Texas · Utah · Vermont · Virginia · Washington · West Virginia · Wisconsin · Wyoming

Frequently asked questions

Can an HOA enforce a rule that isn't in the CC&Rs?

Often, yes, if the declaration or bylaws give the board power to adopt rules and the rule was adopted properly. But a board rule generally can't contradict the declaration or exceed the power the declaration grants, and in some states a rule must also be reasonable. California's statute, for example, makes an operating rule valid only if it is in writing, within the board's authority, consistent with the law and the governing documents, adopted in good faith with the required procedure, and reasonable (Cal. Civ. Code § 4350).

Does federal law override HOA rules?

In specific areas, yes. The FCC's OTARD rule limits restrictions on covered satellite dishes and antennas (47 C.F.R. § 1.4000), the Fair Housing Act requires reasonable accommodations in rules when necessary for a person with a disability (42 U.S.C. § 3604(f)(3)(B)), and the Freedom to Display the American Flag Act bars associations from preventing display of the U.S. flag, subject to reasonable time, place, and manner restrictions (Pub. L. 109-243, §§ 3–4).

Is an HOA rule unenforceable if the board doesn't enforce it against everyone?

Not automatically. Uneven enforcement can support a selective-enforcement or waiver argument, but those arguments depend on how similar the other violations are, whether the board knew about them, and the state's case law. A licensed attorney in your state can evaluate whether the facts support that kind of argument.

Sources

• Cal. Civ. Code § 4205 — Conflicts between the law and governing documents
• Cal. Civ. Code § 4350 — Validity of operating rules
• 47 C.F.R. § 1.4000 — OTARD rule (eCFR)
• 42 U.S.C. § 3604 — Fair Housing Act (govinfo)
• Pub. L. 109-243 — Freedom to Display the American Flag Act of 2005 (govinfo)
• Mont. Code Ann. § 70-1-522 — Political signs
• Mont. Code Ann. § 70-17-901 — Homeowners' association restrictions
• 33 M.R.S. § 1603-102 — Powers of unit owners' association (Maine)
• 33 M.R.S. § 1603-106 — Bylaws; election signs (Maine)
• Neb. Rev. Stat. § 76-860 — Unit owners association; powers
• 60 O.S. § 858 — Displaying the flag of the United States (Oklahoma Statutes, Title 60)