How to Stand Up to Your HOA
If you live on a property that is part of an HOA, then it is important for you to know your rights when it comes to their rules and regulations.
HOA stands for Homeowners Association. You are required to pay them fees and dues by law if you live in its jurisdiction. Not all properties have an HOA; they are most commonly found in a planned community. The function of HOAs is to enforce a set of rules, policies, and procedures in a document called a Memorandum of Incorporation, or MOI. Private and common properties-such as parks and roads- are included in the MOI. Required fees are typically paid monthly and enable the HOA to operate and maintain common properties.
CC&R stands for Covenants, Conditions, and Restrictions. In other words, they are the rules of your neighborhood. An example of this is a common covenant requiring a homeowner to mow his or her lawn and keep it weed-free. Not all of the rules can make sense, however; an example of this is a rule preventing you from painting your house a certain color, such as pink. There are penalties for ignoring the CC&R. Your HOA may fine you, or suspend your privileges to use a common facility.
So what are your rights when it comes to the HOA? While you are required to follow their CC&Rs, their rules CANNOT override state or federal laws. For example, the HOA cannot make or enforce a rule that prohibits you from buying a house in the community due to your race or gender, in accordance with the Fair Housing Act. Some states, such as California, take it a step further by prohibiting discrimination based on sexual orientation.
HOAs cannot suddenly decide to ban or add a rule not stated in the CC&R without due process. What that means is the HOA has to follow their own rules: the regulations for how new rules can be enacted should be outlined in your CC&Rs. If your HOA is threatening you with a fine, no matter what “rule” you broke, it has to be explicitly stated in the association’s rules and bylaws. If the fine isn’t listed, you might not need to pay.
Your right to fly the American flag is protected by federal law under the United States Flag Code. HOAs cannot prevent you from flying the flag on your personal property. They can, however, restrict and regulate the time and manner of your display. What this means is that your display must follow the general guidelines as stated in the Flag Code. Your flag must be either illuminated or taken down during hours of darkness, as well as taken down during inclement weather(unless your flag is an all weather flag). Another regulation your HOA can enforce is the manner of your display: if your flag is on common property(such as flying over a public walkway) or is blocking your neighbor’s view, they are within their reasonable rights to prohibit you from flying the flag.
If the flag you want to fly is not protected by state or federal laws, whether or not your HOA can restrict it is based on the CC&Rs. If your HOA has a holiday flag only rule, then you can only fly a seasonally appropriate flag during that season. An example of this is flying a Thanksgiving flag only during the Thanksgiving season. Your HOA must list the rules about flag displays; if the governing documents lack such rules, then the HOA has no legal basis on which to ban your display. If it is not stated, then it cannot be reasonably enforced.
The flag display rules also must not be discriminatory. The HOA cannot pick and choose when to enforce their rules. If neighbors are flying noncompliant flags without issue, but your HOA demands you take down your noncompliant flag, you have a legal basis on which to fight the ban. It is important to know what regulations your HOA has set in the CC&R. A copy of these restrictions can be obtained from your real estate agent(if applicable) or by contacting the association directly.
In summary, it is important for you to know your rights when it comes to complying with or fighting the rules and regulations created and enforced by your Homeowners Association. Knowing the details set down by federal or state laws can prevent your HOA from unfairly banning your right to display a flag and its accompanying method of presentation.