Homeowners Associations, or HOA’s control over 60% of residential communities in the State of Florida. If you are in the market for a house in Florida, it is very likely that you will come across an opportunity to buy one that is in an HOA community.

HOAs govern communities based on a set of documents which include:

Declaration of Covenants, Conditions, and Restrictions (often abbreviated to CC&Rs)
Bylaws
Rules and Regulations

Together, this set of documents contains restrictive covenants that are, for the most part, legally binding on all of the HOA members. Exceptions to the validity of restrictive covenants include those that are made invalid due to being inconsistently enforced, due to procedural issues or due to being unconstitutional at the State and Federal level. Unless one of these exceptions apply, an HOA’s restrictive covenants will be considered enforceable.

The Reason HOA Covenants and Restrictions Exist

All members of HOA communities are required to comply with the HOA’s restrictive covenants. For some members of the community, HOA rules can be burdensome as they often severely curtail the freedoms that members of non-HOA-governed communities usually have. However, it is important for frustrated HOA members to consider that the reason why covenants and restrictions exist is to maintain higher property values for all of the houses in the community. Nationwide, HOA properties are valued as being 4% higher than similarly-sized properties in adjacent, non-HOA communities.

The Origins of an HOA’s Covenants and Restrictions

A planned community’s covenants and restrictions often begin life when a property developer contracts a real estate attorney to draft them. After the property developer hands over the planned community to its members, an HOA with a board of directors is formed. This is usually done in an election process. Once a board is elected, a majority vote from the board and the democratic input from the community at large are required to make any changes or additions to the HOA’s governing documents.

There are additional procedural requirements to fulfill before the changes take full effect on the community. For example, once any amendments to CC&Rs have been voted into place, for them to become legally binding they must be filed with the county or State where the HOA is based. Until new covenants have gone through the full amendment process and been submitted and approved by the relevant authorities they are not yet legally enforceable.

Buyer Beware

Buyers of houses in an HOA community can inspect the most recent version of the community’s rules and regulations before they buy. Buyers would be wise to avoid assumptions that all HOAs are similar since every community and its rules and regulations are unique. Before beginning the more involved processes of purchasing a house in an HOA, buyers can ask themselves whether or not they want to live within a community where certain covenants and restrictions apply.

Home shoppers, excited about the possibilities of owning a home in an HOA-governed community may discover that the association’s covenants and restrictions are more restrictive than they first assumed. Certain home improvements may be prohibited. Landscaping options may be limited, especially if they are not in line with the landscaping of other properties in the community. Aesthetic details like window canopies and the color of a house’s front door may also be regulated by the HOA. Acceptable fence styles, other property boundaries, irrigation systems and solar panels are often also regulated by the HOA’s governing documents

An HOA may even restrict members from parking certain vehicles (such as RVs or wrapped work vans) in front of the property.

HOAs and COAs can also restrict or all together prohibit renting out properties in their communities. This can include restrictions on short term (ie vacation) rentals. Buyers interested in renting out some or all of their property would be wise to thoroughly investigate an HOA’s rules on renting out community properties before committing to the purchasing process.

“A planned community’s covenants and restrictions often begin life when a property developer contracts a real estate attorney to draft them.”

Limitations on Restrictions

Not all HOA restrictive covenants are equal. Restrictive covenants that contravene federal, state and local laws cannot be legally enforced. Every resident in the community, for instance, has a right to the protections of the Fair Housing Act and the reasonable accommodations of the Americans with Disabilities Act.

An experienced HOA lawyer will be able to know if any of an HOA’s restrictive covenants are invalidated by a local, state or federal law.

In addition to those covenants that are unconstitutional or run contrary to local laws, otherwise valid covenants can be considered unenforceable unless they apply consistently to all members of the community. In other words, HOA boards must treat each homeowner and member of their community with equality.

Finally, all restrictive covenants must be approved by local or state authorities before they are considered enforceable. As stated earlier, CC&Rs are required to be filed and approved by State and/or local authorities before they can be enforced.

Consequences of Noncompliance

HOA’s have robust powers to levy fines, place liens on homes and even force foreclosure on a property for non-compliance.

Every homeowner has a right to a hearing before any sanction is taken. Having legal representation in a homeowner’s corner can make a significant difference in the outcome of any dispute with an HOA.

The Importance of Legal Counsel

As a homeowner-member in an HOA or a prospective buyer in an HOA property, it is highly recommended to have an experienced HOA attorney on hand to review the HOA’s CC&Rs, bylaws and rules and regulations. If you are considering buying a house in an HOA, your attorney can help you to understand the details based on the HOA’s documentation as well as based on federal, state and local laws. If you are in an active dispute with your HOA, your attorney can represent you in writing with full awareness of your rights and obligations. HOA’s are likely to have their own legal representation, so it is better for HOA members to have their own attorneys rather than attempt to “go it alone”.

South Florida Law PLLC

South Florida Law has local experience in homeowner’s association (HOA) and condominium owners association (COA) law. Our boutique size allows us to provide partner-level attention to detail on all of our cases. At the same time, we have the resources of a large law firm to ensure that, if needed, you have the backing to take your issue to mediation, arbitration or litigation. With offices in Hallandale and Coral Gables, South Florida Law is able to serve HOA residents throughout Broward County, Miami-Dade and Palm Beach County.

Are you in a dispute with your HOA? Are you considering buying a house in an HOA-managed community and looking for experienced legal advice? Contact us today at (954) 900-8885 or reach out via our contact form.