Association boards must learn how to discern unenforceable HOA rules and remove them from circulation. These rules can not only cause disputes within the community but also jeopardize the association’s legal standing. Understanding these rules is the first step toward proper enforcement.
What are Unenforceable HOA Rules?
Unenforceable rules are requirements or restrictions that an HOA or condominium may not legally enforce. As invalid rules, associations can’t hold owners liable or penalize owners for breaking them.
Several things can deem a rule void and unenforceable.
1. Rules That Conflict With the Law
An HOA can’t enforce rules that violate state statutes. If a rule conflicts with state law, the law controls. In Oregon, the Planned Community Act and the Condominium Act govern associations.
Additionally, associations must comply with the Fair Housing Act. Any rule that discriminates or fails to provide reasonable accommodation is unenforceable.
2. Rules That Exceed the HOA’s Authority
The board can enforce only rules permitted by the governing documents. For example, an association can’t restrict short-term rentals if the CC&Rs or bylaws don’t say so. If the authority is not there, the rule will not hold up.
3. Vague or Inconsistent Rules
Rules must be clear, and the board must enforce them consistently. Vague terms, such as “unsightly” or “timely,” should be avoided. Instead, rules should be more specific.
Unreasonable HOA rules can also be invalid. Rules must be fair. They should never disproportionately affect a certain group.
3. Retroactively Applied Rules
Associations generally can’t apply new rules to past actions. Common examples include penalizing an owner for a condition that existed before the rule was adopted or requiring the removal of previously approved architectural changes.
4. Rules That Violate Owner Rights
Some HOA rules go too far in restricting basic ownership rights. Associations must always act within their legal limits. A rule that overly restricts the use of common areas, for instance, may be deemed unreasonable and void.
5. Rules That Conflict With Governing Documents
Boards can’t enforce rules that don’t align with the governing documents. For example, the board might pass a resolution that contradicts the CC&Rs. Hierarchy matters here, and the CC&Rs trump operating rules.
6. Improperly Adopted Rules
Both state laws and the governing documents require proper procedures when adopting rules. A rule may be unenforceable if the board failed to give owners notice, didn’t follow the right steps when adopting a new rule, or failed to document the decision.
Examples of Unenforceable HOA Rules
The most common unenforceable HOA rules are those that conflict with the law. In Oregon, associations can’t enforce the rules below.
1. Banning Electric Vehicle Charging Stations
According to ORS 94.762, owners have a right to install an EV charging station for personal use. They may install this charger in their own parking space, lot, or any area they have exclusive use of. Associations can’t place an outright ban on the installation of EV charging stations.
That said, associations can still require owners to submit an application. The board has 60 days to approve the application, but it can delay its response if it needs more information from the owner. Denials without a valid reason are prohibited.
Additionally, HOAs can still enforce architectural standards, charge reasonable review or permit fees, and set reasonable rules on installation and use. But these rules can’t make the charger less effective or too expensive.
Similar provisions exist for condominiums under ORS 100.627.
2. Prohibiting Solar Panels
According to ORS 94.778, HOAs can’t place a blanket prohibition on solar panels. Owners may install solar panels on their own private lots.
That said, associations can still regulate solar panels. They can require reasonable size limits, impose placement guidelines, and enforce aesthetic standards. These rules must still be within reason and can’t defeat the purpose of installing the panels.
3. Imposing Certain Irrigation Requirements
If there’s a serious drought or water restriction, ORS 94.779 states that HOAs can’t require owners to water their lawns. This usually applies when the Governor or a state water agency declares a drought, a local government orders water conservation, or the HOA itself adopts rules to reduce water use.
4. Restricting Child Care Homes
Associations generally can’t stop owners from running small, home-based child care businesses. This is especially true if they are tied to state programs. According to ORS 94.779, this applies if the daycare is licensed or registered and the home is a standalone unit.
That said, HOAs can still regulate things like parking, noise, odors, use of common areas, and anything that affects insurance. Rules must be reasonable and should not effectively shut down the daycare.
There is an exception. If the community is legally classified as housing for older persons, these childcare protections may not apply.
5. Banning Portable Cooling Devices
According to ORS 94.779, HOAs cannot prohibit items such as portable air conditioners unless they violate building codes or safety guidelines. The HOA can still require owners to remove them during cooler months (October through April).
6. Requiring Pesticide Use
In line with ORS 94.763, an HOA can’t force owners to have pesticides applied to their properties. Owners can choose to exclude their home from lawn treatments or landscaping work that involves pesticides.
That said, owners must be responsible for this part of maintenance if they decline the association’s services. This means maintaining their own landscaping while following community standards.
There is one key exception. The HOA can still use pesticides if necessary to prevent serious pest problems or protect public or environmental health.
7. Prohibiting the Display of the American Flag
Owners have a right to show their patriotism by flying the U.S. flag. According to the Freedom to Display the American Flag Act of 2005, any blanket prohibitions on flag displays are unenforceable. Owners may display the American flag on their private properties.
That said, boards can still place reasonable restrictions on the time, place, or manner of the flag’s display. This is done to ensure the association can preserve curb appeal and property values.
8. Banning Satellite Dishes or Antennas
According to the federal Over-the-Air Reception Devices Rule (OTARD), HOAs and condominiums can’t prohibit the installation of antennas or satellite dishes measuring 1 meter or less. This rule effectively protects the right to install devices on an owner’s private lot or in an exclusive-use area. For condo unit owners, this includes balconies.
That said, the OTARD rule does not apply to common areas. Owners can’t install antennas or satellite dishes on shared spaces or elements, such as roofs, hallways, and amenities.
Associations may still place restrictions on installations if they are necessary for safety or historical preservation. These restrictions can’t prohibit installation, prevent good reception, or significantly increase the cost. Boards also may not require prior approval or impose excessive fees.
Avoiding Potential Legal Risks
It is important to be wary of unenforceable HOA rules, as board members may inadvertently expose themselves and the HOA to liability. Knowing the law and the legal limits of the association’s authority is key. When in doubt, it’s best to hire a lawyer or an HOA management company for assistance.
CWD Group offers management services, including legal advice, to community associations in Oregon and Washington. Call us today at 503-488-2008 or contact us online to learn more!
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