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7 Types of Unenforceable HOA Rules

Homeowners Associations (HOAs) and Condo Associations (COAs) have been given broad legal authority to create and enforce rules within their communities.  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.  Although the powers of associations are overarching, there are unenforceable HOA rules in certain situations. 

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.

In general, associations may not:

1. Discriminate or Selectively Enforce Rules

HOAs and COAs must apply their rules fairly among their membership and refrain from discrimination. 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. The Fair Housing Act is a federal law that prevents discrimination based on race, national origin, sex, ethnicity, disability, religion and family status. Violations of the Fair Housing Act carry significant penalties if found to be true.  The U.S. Department of Housing and Urban Development is responsible for the Fair Housing Act’s enforcement.

Associations can also be found to be discriminating against an individual for personal reasons.  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.

Associations must take care when a given rule that had not been historically enforced is suddenly now being enforced.   Members could make a case against the rule’s enforcement on the basis that it never applied in practice in the past.

2. Enact Rules Without a Vote

Associations must follow the procedures and bylaws whenever new rules, enforcement measures or amendments to Covenants, Conditions & Restrictions (CC&Rs) are proposed.

In Florida, as well as in many other states, changes to rules and enforcement measures typically require a majority vote by community members. 

If an HOA (regulated by Florida Statues Chapter 720) or a COA (regulated by Florida Statues Chapter 718) 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. 

3. Contravene the US Constitution

Put simply, HOA rules and covenants cannot infringe upon the constitutional rights of their members or guests. For example, because the US Constitution provides for freedom of speech, the general interpretation of the law is that members are allowed to use their property to display support for individual political candidates and parties. In this case, associations may still restrict where and how such support can be shown for aesthetic purposes.  The guiding principle of any restrictions being that enforcement must apply to all residents equally and not unfairly target any individual. 

4. Prevent Certain Trees 

Florida statute explicitly prevents HOAs from prohibiting certain plants on their members’ properties.  Therefore, homeowners in Florida may use techniques such as xeriscaping (landscaping using drought-resistant flora) without the interference of their HOA.

5. Prohibit Charging Stations

Florida is one of a growing number of states which protect HOA members’ rights to install electric vehicle charging stations on their properties. HOAs in Florida may not ban charging stations, though certain regulations created for aesthetic reasons may apply.

6. Ban Clotheslines 

Clothesline afford association members the use of solar energy to dry their clothes.  HOA rules and regulations that outright prevent clotheslines are unenforceable in Florida as it is considered a “right to dry” state.  As in the case of other prohibitions, HOAs and COAs are still able to dictate where and how large the clotheslines are allowed to be.

“Florida is one of a growing number of states which protect HOA members’ rights to install electric vehicle charging stations on their properties.” 

7. Prevent Display of the US Flag

The Freedom to Display the American Flag Act is a federal law that generally prevents local authorities (including HOAs and COAs) from prohibiting the display of the US Flag. In Florida, HOAs must allow members to display the flags of the US, Florida State and US Armed Forces (including the US Department of Defense services and US Coast Guard). However, the size, number and height of the flags displayed are subject to specific guidelines.  

The Importance of an Attorney

HOAs and COAs are regulated by Federal laws, Florida Statute and local codes as well as by their own bylaws and CC&Rs.  This complex mix of laws and regulations can make it difficult to research which laws specifically apply in certain situations where there may be a dispute between a member and their association.

Neither individual members nor associations should have to ever “go it alone” in a dispute.  Legal counsel with experience in HOA and COA matters can help to: 

  • Research an HOA’s bylaws and meeting records to ensure that procedures are being followed as required
  • Research federal laws, Florida Statute and local laws
  • Facilitate negotiations between the parties involved (eg: members, associations and property management companies) 
  • Draft, review and serve documents

South Florida Law

The complexities of Florida Housing Association and Condominium law make it difficult to navigate through the details of those and other rights and obligations of associations and their tenants.  If you find yourself involved in a dispute with your housing association, be sure not to “go it alone”.  Here at South Florida Law we have boutique firm attention to detail with the big firm resources necessary to take on a homeowner or condo association that is violating your rights. Call us today at 305.900.8885 or reach out via our contact form.

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