If an HOA or COA attempts to enforce rules that have not been properly implemented according to the association’s procedures members would have grounds to dispute whether the rules are actually enforceable. In Florida, as well as in many other states, changes to rules and enforcement measures typically require a majority vote by community members. Members could make a case against the rule’s enforcement on the basis that it never applied in practice in the past.Īssociations must follow the procedures and bylaws whenever new rules, enforcement measures or amendments to Covenants, Conditions & Restrictions (CC&Rs) are proposed. For example, when rules are enforced unevenly (so that they apply to certain members but do not generally apply to all members) then a case could be made that the HOA or COA is discriminating against or even harrassing certain individuals.Īssociations must take care when a given rule that had not been historically enforced is suddenly now being enforced. Department of Housing and Urban Development is responsible for the Fair Housing Act’s enforcement.Īssociations can also be found to be discriminating against an individual for personal reasons. Violations of the Fair Housing Act carry significant penalties if found to be true. The Fair Housing Act is a federal law that prevents discrimination based on race, national origin, sex, ethnicity, disability, religion and family status. If an HOA ever appears to target a specific member or a protected class of people, the chances are that the rules in question could be deemed unenforceable in a court of law. HOAs and COAs must apply their rules fairly among their membership and refrain from discrimination. Discriminate or Selectively Enforce Rules Knowing the limits of an HOA or COA’s authority allows members to protect their legal rights and prevents associations from overstepping boundaries and potentially creating liability.ġ. Although the powers of associations are overarching, there are unenforceable HOA rules in certain situations. Associations are permitted to restrict, control and regulate the activities of their members all with the ultimate goal of increasing the market values of the properties they govern. In order to avoid the four legal defenses described above, community associations need to enforce (through proper procedures) the covenants they have enacted and guard their legal rights.Homeowners Associations (HOAs) and Condo Associations (COAs) have been given broad legal authority to create and enforce rules within their communities. The association only waives its right to enforce the covenant for similar violations it ignored in the past. By tolerating or accepting certain violations of the covenant, the HOA may indicate that it does not intend to enforce that covenant. WaiverĪ homeowner’s association may “waive” its rights by not enforcing the covenants in the present. If by that time the HOA does nothing, the trespassing property owner can take legal title to the land. In many jurisdictions, this has to happen for 15 years. For an adverse possession claim, the property owner must openly maintain physical possession of this common area and exclude others in the community from using it. Sometimes, if a property owner trespasses on a common area by a few feet, an HOA may lose the right of title to this strip of land. A court needs to determine that because the violations are so widespread and actions enforcing the covenant do not exist, the covenant is effectively abandoned. Generally, to prove abandonment, the individual asserting the defense must show that a reasonable person would believe the covenant ceased to exist due to frequent and extensive violations. The restrictions set forth by an HOA are never absolute and a court may terminate the covenant in certain circumstances. Homeowner’s associations (HOA) often utilize this type of agreement in the documents that form the association– Covenants, Conditions and Restrictions. A restrictive covenant is a type of agreement in a contract that restricts a land owner’s use of the property or imposes obligations on the owner of the properties.
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