Who gives power to Homeowners Associations (HOA)

Updated: Oct 6, 2019

All of us know that homeowners association is powerful. They collect dues; they govern the looks of the community. They get involved in all the activities that an individual homeowner does to his or her property exteriors. Put them in perspective, they include:

--House color, type and color of shingles or roofing;

--Color, style and other parameters of the fence/ exterior ornamentals; and where they are allowed to be erected;

--Mailboxes styles;

They are also in charge of administrative business:

--Regular meetings;

--Collects dues: employs property management companies to do this and others;

--Hires contractors to collect garbage for all households;

--Hires contractors to maintain common areas and winter snow cleaning. This includes maintaining and growing plants and trees (including mowing/trimming), etc.;

--Parking areas, if any;

--Recreation areas, if any;

--Stipulate only which days and after what time (normally after dark) you are allowed to put out your garbage;

Some HOAs go even extra mile:

--What kind of and how many trees and plants are allowed;

--Plant pot sizes and colors, etc.;

--Mailboxes sizes, etc.;

--Trash cans color and style;

The intention is to make the community gracious and neat, subsequently, to protect the property value and safety. If a restriction is too broad, it may be construed as preventing the free transfer of property.

But where the HOA obtains their power? Typically, a developer sets up some rules when they develop this community. The developer’s restrictions may be imposed through a covenants in the deed or by a separate recorded declaration that is referenced in the deed. The covenants typically govern the type, height, and size of buildings that individual owners can erect, as well as land use, architectural style, construction methods, setbacks, and square footage. The covenants is enforced by the homeowners association (HOA) that is set up by the developer and turned over to the homeowners when a specified number of properties has been sold. Whenever a property is transferred, the settlement attorney makes sure that the restrictive covenants is passed down and is in the deeds. This is considered private restriction and is not part of government power. But the homeowners association is operated under a democratic system, the operation of the HOAs is considered part of civil society. Under this umbrella, the homeowners are obligated to pay dues; obey the covenants. In other words, the homeowners are obligated to follow the rules about their exteriors regulations set up by HOAs. For non-compliances of dues or exteriors rules, HOA could apply court injunction to enforce the rules and ask non-complied homeowners to pay the unpaid amount or to correct the non-compliances.

Private land-use controls may be more restrictive of an owner’s use than the local zoning ordinances. The rule is that the more restrictive of the two takes precedence. For example local zoning ordinance may stipulates smaller setbacks than the HOA’s. If this happens, the more strict one , in this case which is HOA rules, takes precedence.

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