Home Owners Association

Collated by CPCN

March 25, 2014

Distilled
Source:

Wisdom of Ages Collated Together and unabshedly stolen from many sources
From the long experience of the people running their own Association democratically for ages.

Contents
1 CCRs and other HOA Documents
A
Legal Description of the Common Interest Development
B
Key provisions of the governing instruments include: . .
C
Enforcement of CCRs . . . . . . . . . . . . . . . . . . .
D
Availability of Documents . . . . . . . . . . . . . . . . .
E
Distribution Requirements . . . . . . . . . . . . . . . . .
F
Amendments of governing Documents . . . . . . . . . .

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4
4
4
5
5
6
6

2 Homeowners Associations and Insurance

A
Commercial General Liability Insurance . . . .
B
Automobile Insurance . . . . . . . . . . . . . .
C
Directors and Officers Liability Insurance . . .
D
Employee Dishonesty Insurance . . . . . . . . .
E
Comprehensive Equipment Coverage Insurance
F
Workers Compensation Insurance . . . . . . .
G
Umbrella Liability Insurance . . . . . . . . . .
H
Personal Insurance Protection . . . . . . . . . .
I
Periodic Coverage Review . . . . . . . . . . . .

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6
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8
8
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8
9

4 HOAs and Real Estate Developers

A
Common Interest Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B
Developers Role in the HOA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C
Liability of Developer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

9
9
9
9

5 Homeowners Associations and Discrimination

A
Central & State Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B
Protection of Children and Senior Citizens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C
Protection of Disabled Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

10
10
10
10

6 HOA: Homeowner Rights & Duties

A
What is a Homeowners Association?
B
Elections . . . . . . . . . . . . . . . . .
C
Other Rights . . . . . . . . . . . . . .
D
Responsibilities . . . . . . . . . . . . .
E
Dealing with the HOA Board . . . . .
F
Taking It to Court . . . . . . . . . . .

11
11
11
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12
12
12

Disputes and Homeowners Associations

A
Administrative Hearing System . . . . . .
B
Dispute Procedures . . . . . . . . . . . . .
C
Hearing . . . . . . . . . . . . . . . . . . .
D
Findings and Recommendations . . . . . .

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HOA Boards: Rights and Duties

A
Manner of Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B
Boards Powers and Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C
Liability of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

8 HOA: Repairs and Maintenance

A
HOA Responsibilities . . . . . .
B
Architectural Controls . . . . .
C
Maintenance Fees . . . . . . . .
D
Reserves . . . . . . . . . . . . .
E
Questions for the Attorneys . .
9

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13
14
14
14
14
14

Homeowners Association Meetings

A
First Meeting . . . . . . . . . . . . .
B
Annual Member Meetings . . . . . .
C
Governing Body Meetings . . . . . .
D
Calling a Meeting . . . . . . . . . . .
E
Attendance . . . . . . . . . . . . . .
F
Notice Requirements . . . . . . . . .
G
Special Meetings . . . . . . . . . . .
H
Meeting Minutes . . . . . . . . . . .
I
Action without Meeting . . . . . . .

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14
15
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16

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10 Finance Basics of Homeowners

A
Initial Finances . . . . . . . . .
B
HOA Financials . . . . . . . . .
C
HOAs Taxes . . . . . . . . . .

Associations
16
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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

11 HOA Assessments and Fees

A
Regular Assessments . . . . .
B
Special Assessments . . . . .
C
Collection of Assessments . .
D
Enforcement of Assessments .
E
Restrictions on Transfer Fees

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18
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19

12 Nuisance
A
Stopping a Nuisance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B
Environmental Laws vs. Nuisance Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C
Determining Unreasonable Use of Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

19
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19

13 Resources

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HOME OWNERS ASSOCIATION

Homeowner associations (HOA) are formed to preserve the aesthetics and integrity of a neighborhood,
address residents needs and, should anything happen, address major issues. With day-to-day duties that
include everything from managing the services to replacing power equipment, running a HOA requires a
substantial amount of financial resources, which traditionally comes in the form of monthly, quarterly or
annual fees. It is an undeniable fact that community associations benefit their respective communities by
reinforcing the rules and regulations that are mutually agreed by the members of association.
ost knowledge about Home
Owners Association has been
captured here. This contain the distilled wisdom of many
years of Home Owners experience of
creating a democratic apparatus to
manage their common interest devlopment and running the same essentially to

include articles of incorporation or

agreement and bylaws. The provisions of the CCRs are enforced by the
board of directors of the homeowners association (HOA). The governing documents must be made available for review, and some of them
must be distributed to the homeowners. The governing documents can be
amended. CCRs
1. Preserve
The declaration of covenants,
conditions and restrictions (called the
2. Protect
declaration or the CCRs) is a doc3. Maintain &
ument which sets out legally required
4. Enhance the value of the Assets information about a common interest
development. This is one of the documents that must be filed with the
1 CCRs and other states real estate department in order to sell units in the development.
HOA Documents
Some state laws require basic inforThe declaration of covenants, condi- mation, such as:
tions and restrictions (CCRs) is the
basic governing document of a com- A Legal Description of the
mon interest development, which is
Common Interest Dea real estate development that comvelopment
bines individual ownership interests,
like ownership of a condominium or A statement that the common intera house, with common ownership of est development is a condominium
shared areas or facilities, like a club- project, planned development, stock
house, pool, or open area. State laws cooperative, community apartment
require that it include specified infor- project, or combination of the foregomation, such as the restrictions on ing The name of the homeowners asthe use of any portion of the devel- sociation (HOA) The restrictions on
opment. Other governing documents the use or enjoyment of any portion

of the common interest development

that are intended to be enforceable
restrictions Other state laws and regulations may state that the declaration is one of the governing instruments for a common interest development, and they set out the required
subject matter of those instruments.
The regulations include requirements
that must be complied with in order
to get state approval for the development.
Most of the provisions satisfying regulatory requirements typically
appear in the declaration, with the remainder in the associations bylaws.

Key provisions of the

governing instruments
include:
1. Creation of an organization (association) of subdivision interest owners
2. A description of the common interests of the common interest
development owners or lessees
3. Transfer of title and/or control
of common interests to the owners in common or to the association

4. Procedures for making and col- Common interest developments are

lecting assessments to pay the required to have other governing docexpenses of the HOA
uments in addition to the CCRs.
Homeowners associations that are
5. Policies for obtaining liens upon non-profit corporations must have the
privately owned separate inter- following documents:
ests if assessments arent paid
on time, and for foreclosure of
1. Articles of incorporation, which
these liens for nonpayment
set out the name and address
of the HOA, the name and ad6. Policies and procedures relating
dress of the initial agent for serto the disciplining of members
vice of process, the name and
for failure to comply with proaddress of the managing agent,
visions of the governing instruand a statement identifying the
ments
corporation as an association
formed to manage a common
7. Creation of a governing body
interest development
for the HOA
8. Procedures for the election
and removal of governing body
members and officers of the
HOA
9. Enumeration of the powers and
duties of the governing body
and officers
10. Preparation of the budgets
and financial statements of the
HOA for distribution to its
members
11. Regular and special meetings of
the HOA members and board
(and notice requirements for
the meetings)
12. Amendment procedures for the
governing instruments

Enforcement of CCRs

Covenants and restrictions are part of

the declaration and enforceable as equitable servitudes (restrictions on the
use of land) and as covenants running
with the land (agreements that concern the land). Generally, covenants
and restrictions concern the architectural standards and controls and the
uses of individual units. They are for
the benefit of and bind all owners of
separate interests.
Usually, the HOAs board of
directors or designated committee has
the initial responsibility for addressing violations of the covenants and restrictions. A homeowner will file a
2. While there is no legal requirecomplaint or request approval of proment that an HOA which is
posed changes. The association must
an unincorporated association
provide a fair procedure to hear and
have either articles of associdecide the matter. If the dispute isnt
ation or bylaws, these docuresolved, the parties typically have to
ments should be prepared and
go through a more formal alternative
signed since they constitute the
dispute resolution process. If that
agreement among the members
fails, they can resort to a civil lawand determine the nature of
suit to decide the matter.
the association.Corporate bylaws, which are used for regulation of the internal affairs of
D Availability of Docuthe association, including such
ments
matters as assessments, maintenance and repair, use of units Most of the time, a new homeowner
and common areas and facili- becomes a member of the HOA and
ties, meetings of the board of is given a copy of the CCRs when
directors and the members, and the homeowner purchases the proprules of conduct of the residents erty. Also, upon written request by

While there is no legal re- the homeowner, HOAs are required

design quirement that an HOA which is an to provide the homeowner with the
unincorporated association have ei- following documents:
14. Special provisions authorizing ther articles of association or bylaws,
1. A copy of the governing docuthe governing body to represent these documents should be prepared
ments
the HOA in litigation or arbi- and signed since they constitute the
agreement among the members and
tration
determine the nature of the associa2. A copy of the most recent finan15. Other Documents
tion.
cial statement of the HOA
13. Architectural
control

and/or

3. A written statement specifying

the amount of the HOAs current regular and special assessments and fees, and any amount
due by the homeowner

process can require a lot of time, effort and expense.

If the declaration requires the
approval of more than a simple majority of the homeowners, the HOA or
a homeowner can petition the county
4. A copy of notices indicating court to order a reduction in the perany unresolved violations of the centage of affirmative votes needed
CCRs by the homeowner
for an amendment.
If you have any questions
about
CCRs
or other documents of
E Distribution Requirea
common
interest
development, conments
tact a Residential Real Estate Lawyer
The HOA may be required to dis- in your area.
tribute certain documents to homeowners, including:

Homeowners Asso-

1. A budget for the upcoming year

ciations and Insurthat contains the associations
revenue and expenses, availance
able reserves and planned reA homeowners associations (HOA) is
pairs and replacements
an organization of homeowners living
2. A summary of the HOAs prop- in a real estate development, the maerty, general liability, earth- jor purpose of which is to enforce deed
quake, fidelity and flood insur- restrictions and maintain common arance policies Amendment Pro- eas of the development. The decedures
velopment might be a condominium,
a planned unit development (PUD)
F Amendments of govern- with separate home sites or a planned
residential development. Comprehening Documents
sive Insurance Program
Every association needs a
The governing documents, including
the declaration, the articles of incor- comprehensive insurance program to
poration or association and the by- protect itself from casualty losses,
laws, can be amended. State laws personal injury and property damage
set out the requirements for amend- claims, as well as miscellaneous areas
ing these documents. The docu- of liability exposure, such as officers
ments themselves also set out the and directors liability for the HOAs
procedures required for changing the board of directors. An adequate inrules. Usually, amendments are pro- surance program should consider how
posed and are voted on by the HOA. the units are situated or connected. A
Amendments may require the ap- condominium building will have difproval of a majority vote of the board ferent needs than a subdivision with
of directors, of the association, and of a clubhouse and a pool.
members who arent developers. This
Even though a condominium
6

is required to obtain a blanket fire

and casualty insurance policy covering all units, as well as all common areas, a planned unit development has
the option of either obtaining such a
policy or insuring only the common
areas. A developer usually prefers to
have the PUD association insure only
the common areas, since that eliminates the cost of fire insurance on individual units.
An HOA needs to have insurance but what is right for one community may not be right for another.
Coverage needs to be appropriate for
the association involved. The following coverages should be considered
when determining what is right for
your HOA:
1. Property insurance
2. Commercial general liability insurance
3. Automobile insurance
4. Directors and officers liability
insurance
5. Employee dishonesty insurance
6. Comprehensive equipment coverage insurance
7. Workers compensation insurance
8. Umbrella liability insurance
9. Property Insurance
Property insurance covers
buildings, structures and personal
property owned by the association.
This type of insurance typically includes common property, parkland,
woods, open spaces, recreational facilities, buildings and sometimes portions of residential areas.

Property insurance provides

protection for loss of or damage to
community association property. A
HOA needs to determine the areas
to be insured and should have a professional appraisal done to determine
the value of the property. Replacement cost plus coverage, which assures full value replacement, without
regard to a coverage dollar limit and
the actual cash value of the property
is also a wise choice.
An open perils policy is
preferable to a named perils policy
because the coverage provided under the open perils policy is much
broader. Under the named perils coverage, it is up to the association to
prove the cause of loss is covered by
the policy. With open perils policies,
all causes of loss are covered, unless
specifically excluded or limited, and
the burden of proving that a cause
of loss is not covered or limited rests
with the insurer.

2. Property damage or loss resulting from the operation, maintenance or use of common areas
3. Personal injury, such as false arrest, libel, slander, defamation
of character and invasion of privacy
4. Advertising injury, such as infringement of copyright
With commercial general liability insurance, the insurer typically pays
damages, legal defense fees and case
settlement charges.
Comprehensive general liability insurance extends liability coverage to any location where association
business is taking place. For example, this type of policy will extend
liability coverage to an off-property
location if thats where a meeting or
HOA-sponsored picnic is being held.

Automobile Insurance

Automobile

insurance

is

needed

Commercial
General whenever a HOA has employees who
drive cars, trucks or maintenance
Liability Insurance

Homeowners Associations must have

commercial general liability insurance, which is designed to protect the
HOA from a wide variety of liability
exposures.
Unlike property damage,
which can frequently be measured
in dollar amounts, liability claims
have no limits, other than those imposed by the courts. Commercial
general liability insurance covers four
types of claims:
1. Bodily injury that results in actual physical damage or loss,
such as slip and fall accidents

vehicles on association property or

while they are carrying out association business. Hired car liability
protects the association against liability from the operation of automobiles
that it hires, rents, leases, or borrows.
Non-owned automobile coverage protects against liability for operation of
autos that the association does not
own or hire. Also, any vehicle owned
by the association should be insured.

management of funds or policies results due to negligence by the HOAs

board. Typical claims include wrongful termination, sexual harassment,
discrimination and mismanagement
of funds. It should also protect employees and any committee members
or volunteers.

Employee
Insurance

Dishonesty

Employee dishonesty insurance, also

known as a fidelity bond, indemnifies the community association for the
loss of money, securities or any property because of acts of fraud, dishonesty, forgery, theft, larceny, embezzlement, wrongful abstraction, willful
misapplication, misappropriation or
any criminal act on the part of directors, officers, committee members, association employees, board members
and volunteers. Coverage can protect
the association against criminal acts
by an independent managing agent.

Comprehensive Equipment Coverage Insurance

Comprehensive equipment (boiler

and machinery) insurance is a form
of property insurance that protects
against financial loss from property
damage, business interruption and
spoilage that is the result of sudden
and accidental mechanical breakdown. It fills the gaps left by propC Directors and Officers erty insurance policies. Coverage can
be written for a specific item such
Liability Insurance
as an air conditioner, or it can be
Directors and officers liability insur- written to cover a number of items
ance (DO) is necessary when mis- on a blanket basis.
7

Workers
Compensa- vary-some HOA policies may cover
Your HOA hearing system
the
original
unit
improvements,
or
must
conform
to local laws and meet
tion Insurance

Workers compensation insurance

provides coverage required by state
law for injuries to association employees and volunteers that occur on
the job. Workers compensation laws
incorporate four types of benefits:
disability (loss of income), medical
benefits, survivor (death) benefits
and rehabilitation benefits.

may cover upgrades, like hardwood

flooring or new carpet if you pay for
the additional premiums allocated to
your improvements. Some policies
will cover damage to a unit owners
property if the loss was due to a failure of a common element, like a leaky
roof.

the needs of your development. Bylaws should clearly state that the administrative remedy must be pursued
before its heard in court.

Dispute Procedures

Dispute procedures say the person

who is being complained about is
I Periodic Coverage Re- served with a written statement of the
charges along with a notice about his
view
G Umbrella Liability Inright to request a hearing. The notice
surance
An association must keep its owners of the right to a hearing should state
that:
Umbrella liability insurance closes the informed of the current status of its
A hearing must be requested
liability
insurance
coverage.
In
adgap between underlying limits of covwithin
15
days or else the right is
dition,
it
is
a
good
practice
for
the
erage and possible claims in excess of
waived
The
person has a right to an
associations
governing
body
to
rethat coverage. Umbrella liability inattorney
view
the
projects
insurance
coverage
surance is tailored to each HOA and
the risks covered are generally negoti- at periodic intervals.
ated. No standard umbrella policy
C Hearing
exists, so a HOA need to work closely
Disputes
and The parties are entitled to get names
with an insurance agent to get a pol- 3
icy that fits their needs.
Homeowners As- and addresses of witnesses, and inspect and make a copy of any statesociations
ments, writings and investigative reH Personal
Insurance
ports important to the hearing.
Protection
Homeowners associations (HOA) are
The associations president
groups of homeowners living in a real then appoints typically three memResidents will still need to provide
estate development that enforce re- bers to hear the complaint. This
their own personal insurance protecstrictions and maintain common ar- is a tribunal and its members cant
tion. Many community associations
eas. Condominium and town home be directors, related to either party,
carry master policy coverage on badevelopments and newer single-family neighbors of the parties, witnesses to
sic structures and common property;
subdivisions have HOAs. The board the complaint or persons investigathowever, association insurance usuof directors governs the HOA. The ing the complaint.
ally does not cover personal possesboard is elected by the owners.
sions.
Personal insurance protecThe tribunal elects a chairtion provides coverage for personal
man and appoints a recorder who
property, unit improvements, better- A Administrative
Hear- presents evidence and records the
ments, additions and alterations, adproceedings. Also on hand is a legally
ing System
ditional living expenses and personal
trained hearing officer who rules on
liability. If youre a property owner, Disagreements between owners and the admissibility of evidence and adcheck with your HOA and find out directors or owners can lead to costly vises on matters of law. The hearing
whether HOA insurance will cover lawsuits. An administrative hearing should not occur sooner than ten days
any of these items. Coverage can system is set up to avoid lawsuits.
after receipt of notice.
8

Each party can call and examine witnesses, question credibility

and dispute evidence. The hearing is
somewhat informal and open to all association members.

Also, developers may be held liable

on certain kinds of claims concerning
the project, such as construction defects.

A
D

Findings and Recommendations

Common interest developments are

After the hearing, the tribunal prepares a report of facts and recommendations for the boards consideration.
The board may use all the tribunals
recommendations or reduce the proposed punishment and adopt the rest
of the recommendations. They arent
allowed to apply harsher actions than
recommended by the tribunal.

Common Interest Developments

HOAs and Real Estate Developers

Every planned residential development or other kind of common interest development consisting of common areas and individual ownership
interests, such as a condominium development, will need management,
and a homeowners association usually fills this role.
The association can be a non-profit corporation or an unincorporated association
which is set up to manage the development. These managing entities
are called homeowners associations
(HOAs). The developer, who is the
person or business that buys the land
and builds the residential units or has
the units built, has a role in forming the HOA and selecting its initial
board of directors. Although the developer can vote in the election of
directors, the developers control is
somewhat limited by election rules.

created under state laws. In forming

a residential common interest development, a develop will need to file
several documents with government
authorities:
1. A declaration, which is a document containing a legal description of the development and any
restrictions on ownership
2. A condominium plan, if any exists
3. A final map or parcel map if
state law requires the recording
of such a map for the common
interest development

Developers Role in the

HOA

The life of a HOA begins with the

first meeting of owners. Usually, this
meeting must be held within a certain amount of time after the sale of
the first unit. The first board of directors for the HOA must be elected
at this meeting. Because the developer is a property owner, the developer can vote for directors. However,
so long as a majority of the voting
power of the association resides in the
developer, or so long as there are two
outstanding classes of membership in
the association, a certain percentage
of directors must be elected by the
votes of non-developer owners.
After the election of the
board of directors, operational control of the development is transferred
from the developer to the board.

Liability of Developer

Developers of common interest devel4. Typically, before selling any opments are sometimes sued by ununits in the project, the devel- happy homeowners. These lawsuits
oper must notify the state real fall into one of three categories:
estate agency of his intention
to sell units and must obtain
1. Construction defect claims.
a public report on the develThese are claims relate to the
opment from the state real esactual design and constructate commissioner. The comtion of the project. Successful
missioner wont issue a pubclaims for construction defects
lic report until he finds that
are generally based on breach
the governing documents conof implied warranty or neglitain reasonable arrangements
gence. On a breach of implied
concerning the management,
warranty claim, the homeowner
use and control of the developalleges that in selling the home
ment. Among other things, the
or unit, the developer guarreasonable arrangement regulaanteed that it was fit for a
tions impose requirements reparticular purpose, and that
lating to the form and powers
it wasnt, in fact, fit for that
of HOAs.
purpose. In a negligence claim,
9

the homeowner alleges that the

developer had a duty to determine the structural condition
of a home and prevent defects,
that the developer violated that
duty and that the homeowner
was harmed as a result.
2. Marketing misrepresentations.
These are claims involving how
the developer markets individual units to the public. The
homeowner alleges that the developer made certain representations during the development
phase of the project, that the
homeowner had expectations
based on those representations
and that the representations
werent true.
3. Breach of fiduciary duties.
These are claims which involve
the manner in which the developer manages and operates
the HOA before turning control
over to the homeowners. The
homeowner alleges that the developer had a fiduciary duty to
serve the HOAs best interest
and that the developer violated
that duty by acting in his own
interest instead.

tomatic upon becoming a property

owner in the development. HOAs
have the authority to enforce the restrictions found in the homeowners
property deeds. An HOA gets its
power and authority from a variety of
legal documents, including the HOAs
governing documents and federal and
state laws. The HOA governing documents consist of the declaration of
covenants, conditions and restrictions
(CCRs), the articles of incorporation,
the bylaws, and the rules and regulations adopted by the HOAs board.
Homeowners
associations
have the power to enforce the CCRs
and to manage the common amenities of developments but they cant
do so in a discriminatory way. Fair
housing laws protect residents against
discrimination in housing.

Central & State Laws

Homeowners associations often reserve the right to approve or reject

new residents. Such approval or rejection cant be based on race, color, religion, sex, handicap, familial status
or national origin because this would
violate the Fair Housing Act.
The Fair Housing makes it
against the law to deny persons with
disabilities reasonable accommoda5 Homeowners Asso- tions or the right to make reasonable
modifications to a dwelling when the
ciations and Dis- accommodations or modifications are
needed for them to fully enjoy their
crimination
homes.
Homeowners associations (HOAs)
The actions, policies and govare legal entities created to maintain erning documents of homeowners
common areas in various types of real associations must comply with the
estate developments, such as condo- Disabilities laws. Homeowners asminiums and subdivisions. Depend- sociations must comply with antiing on the type of development, mem- discrimination laws that apply to disbership in the HOA usually is au- abled persons, or run the risk of fac10

ing lawsuits and legal expenses.

The laws appliy to public accommodations, which may include
facilities that are part of a common
interest development if they are open
to the public, such as when an HOA
leases a facility to the public in exchange for money. If a facility located
within a common interest is open only
to association members, not to the
public, then such facility probably
isnt a public accommodation under
the Disabilities laws.

Protection of Children
and Senior Citizens

Generally, a homeowners association

may divide a project into adults-only
and family areas when the division is
approximately equal. When accommodations are designed to meet the
physical and social needs of senior citizens, housing may be established and
preserved unless prohibitions against
discrimination on the basis of familial
status apply. Law prohibits discrimination against families with children
under 18.
An HOA may not prohibit
the temporary display of a cautionary sign pertaining to children playing or prevent resident children from
playing on a residential road with a
posted speed limit of 25 KM per hour
or less when the road is under the authority of the HOA.

Protection of Disabled
Persons

The Fair Housing prohibits discrimination against persons with disabilities. A homeowners association may
not use disability as a factor in making decisions on the approval of a new

occupant. Refusing or discouraging a

sale because of disability is a violation
of the Fair Housing Act.
Homeowners associations are
required by the Fair Housing to allow reasonable modifications to housing, such as the installation of a
ramp, paid for by an occupant with
disabilities so that a occupant with
a disability may use and enjoy the
premises. They are also required to
make reasonable accommodations in
rules, such as those governing parking, to enable an occupant with disabilities to use and enjoy the dwelling.

HOA: Homeowner
Rights & Duties

If you own a house in a planned residential development, youre a homeowner. All of the homeowners in the
development typically belong to the
homeowners association (HOA) for
that development. Membership is automatic with the purchase of a home
in the development. As a homeowner
and a member of a HOA, you have
rights and responsibilities.

What is a Homeowners Association?

If a common area or facility

is deemed a public accommodation,
the law requires HOAs to take certain actions with respect to architectural barriers that exist on the associations premises and with respect
to the associations governing documents. An HOA may be in violation
of the ADA if it fails to remove architectural barriers in existing facilities
where such removal is readily achievable by the association. However,
the ADA also allows for some barriers to remain if the cost of removal
is overly burdensome to the association. Architectural barriers could
include the non-existence of ramps
for wheelchairs, inaccessible restroom
and/or shower facilities, or any other
structure which prohibits or prevents
a disabled person from accessing the
public accommodation.

the homeowners are required to elect

their first board of directors for the
HOA.

Elections

Homeowners have the right to elect a

board of directors to lead the HOA.
They each have as many votes as the
number of properties they own in the
development. At the beginning of the
sale process, the developer typically
has more votes than do the individual
homeowners. However, the balance of
votes changes as more properties are
sold to individual homeowners.
Because the first board of directors is elected at the first meeting of the HOA, the names of candidates should be circulated before the
first election. If a property owner has
more than one vote and is going to
use more than one vote per candidate
(which is called cumulative voting),
the owner must say so before the election begins.
Board members serve for the
length of time indicated in the HOAs
bylaws. The other homeowners can
remove individual board members
in limited circumstances of violation
their fiduciary duties.

A homeowners association is a nonprofit corporation or unincorporated

association set up to manage the common property of a residential real estate development. Its goal is to keep
property values and the quality of life
in your condo building or subdivision
as high as possible.
HOAs that are corporations
are run like any other corporation,
with a board of directors (elected
by the members), meetings, minutes,
strict record-keeping and annual budgets. HOAs that are unincorporated
associations are run in a similar manner, as indicated in the articles or bylaws of the association.
C Other Rights
HOAs are created under and
are regulated by state laws. Some In addition to the right and responsistates require that a developer of a bility of belonging to the HOA, you,
common interest real estate develop- as a homeowner, have the right to:
ment file information about the proposed plan with the states real estate
1. Use common property, such as
A homeowners association department and get approval before
a common clubhouse and recrecan be deemed out of compliance with lots are sold. State laws also require
ational facilities
the law either through its rules and that the first meeting of the HOA ocpolicies, or through its possible archi- cur within a certain time after the
2. Access any disciplinary process
tectural barriers.
first unit is sold. At this meeting,
set up by the HOA
11

3. Enforce any covenants or agree- very helpful in doing this.

ments that affect your property
If the association board wont
directly
allow you a variance, you can try to
change-called amending-the CCRs
4. Challenge any rule changes or bylaws. The documents themmade by the HOA
selves should detail the procedures required for changing these documents.
However, the process can be expenD Responsibilities
sive, and usually requires the agreeAs a homeowner, you have a respon- ment of most HOA members.
sibility to comply with the provisions
If all else fails, youve always
of the declaration of covenants, condi- got the option of trying to vote in new
tions and restrictions (CCRs), which board members at the next HOA elecis a document that you signed when tion.
you purchased the property. The
CCRs set out restrictions on what
you can do with your property, such F Taking It to Court
as what colors you can paint your If you have a legal claim against your
house and how high your fence can neighbor or HOA, you have the right
be.
to sue them in court. However, suing
your neighbor or HOA should always
E Dealing with the HOA be a last resort, for the obvious reason that its tough to litigate against
Board
someone who lives so close and you
If you want to do something youre have to see everyday, not to mention
not sure is acceptable under the the possible expense of a lawsuit and
CCRs, rules, or you want to stop your the time involved.
neighbor from doing something annoying, youll want to start by readHOA
Boards:
ing the CCRs in detail. There may 7
also be by-laws to look through to
Rights and Duties
see if your particular situation is addressed.
A homeowners association (HOA) is
If the association board is not a nonprofit corporation or unincorfollowing the rules, you should talk to porated association the purpose of
an individual board member and then which is to manage a common infollow the conversation up with a let- terest real estate development. The
ter detailing the exact issue. Maybe HOA is comprised of owners of propthe board members dont know that erty in the development. The HOA
they are doing something wrong.
elects members of a governing board
If you want to do something to direct its activities. The board of
outside of the rules, you will proba- directors has certain powers and dubly have to ask the board for a vari- ties. Directors also have individual
ance and go through a formal hear- duties, and they may incur liability if
ing process. Getting other homeown- they breach those duties. Organizaers to support your position can be tion
12

Homeowners
associations
consist of all of the property owners
in a real estate development which
has common and individual interests.
Typically, all property owners in the
development are required to be members in the HOA. So, for example,
all property owners in a planned residential development are members of
its HOA.
HOAs are created under and
regulated by state law. State laws
usually require the first meeting of
the HOA to be held within a certain
amount of time after the first unit in a
development is sold. For instance, the
first meeting of the HOA may have
to occur within six months after the
closing of the sale of the first unit in
the development. All property owners, including the developer, are invited to the meeting.
The first governing board of
the HOA should be elected at the first
meeting, and all positions should be
filled. Since these elections will occur at the first meeting, information
about the candidates should be circulated before the meeting.

Manner of Voting

State law may require a secret written ballot for board elections. State
law may also require or permit voting to be cumulative, which means
that each property owner may cast as
many votes as he has for one or more
but fewer than all of the members on
the slate. An owner must give others notice that he intends to cumulate
votes before the election takes place.
Unless the entire board is removed by vote of the owners, individual board members cannot be removed from office prior to the expi-

ration of their terms if the votes cast

against removal are sufficient to elect
them.
The governing documents
should require that so long as the
majority of power resides in the developer, a certain percentage of board
members should be elected by the
non-developer owners.
After the first meeting, the
board should meet, elect its officers
and decide on how it will operate.

Boards
Duties

Powers

6. Preparing budgets and financial

statements for the association

Corporate directors cannot

be held personally liable for the injuries caused by the registered entity.
7. Formulating rules of operation Directors may be held liable if their
for the common areas and facil- own conduct causes injury. In some
ities
HOA disputes, volunteer directors or
8. Conducting disciplinary pro- officers of HOAs may not be held perceedings against members of sonally liable in excess of minimum
the association for violations of insurance limits set by law .
the rules

Liability of Directors

and Members of the board of directors of

The governing body (or board of directors) of the HOA is responsible for
the management of all aspects of the
association. It may delegate the management of its activities to other persons or businesses, such as a property
management service, but it must retain ultimate control. The boards
powers and duties normally include
such things as:
1. Enforcing provisions of the declaration, articles and bylaws for
the ownership and management
of the development
2. Paying taxes and assessments
that are, or could become, a lien
on the common area
3. Contracting for insurance on
behalf of the association
4. Contracting for goods or services for the common areas or
for the association
5. Delegating its powers to any
committees, officers or employees of the association authorized by the governing documents

an HOA that is a nonprofit corporation must perform their duties in

good faith, in a manner that is in the
best interest of the corporation, and
with the care that a reasonably careful person would use under the circumstances. A director is entitled to
rely on the advice of other officers,
professional people, or HOA committees.
A director of an unincorporated association is not personally liable for the debts and obligations of
the HOA unless the director:
1. Personally assumes responsibility for the debt
2. Executes the contract without
disclosing that he or she is acting on behalf of the HOA or
3. Executes the contract without
the authority to do so
4. The directors have a fiduciary
duty to the members of the
HOA and are liable for the
breach of those duties. That
means that they may not make
decisions that benefit their own
interests rather than those of
the members.
13

HOA: Repairs and

Maintenance

Homeowners associations (HOAs)

are legal entities created to maintain
common areas of various forms of real
estate developments, such as condominiums or other residential developments. They are made up of people
who own homes in the same development. HOAs have the authority to
enforce deed restrictions. Many condominium and town home developments as well as newer single-family
subdivisions have HOAs. HOAs are
usually created when the development is built. They are established
to ensure that the covenants, conditions and restrictions (CCRs), which
are limitations on how property can
be used, are adhered to in order to
maintain the quality and value of the
properties in the development.
Membership in the homeowners association is mandatory for all
property owners within the development and members are usually
charged mandatory fees. Homeowners associations have the authority to
enact and enforce maintenance and
design standards in addition to those
established by city ordinances.
The homeowners association
is responsible for managing and main-

taining the improvements in common

areas, which are the areas that are
used by all owners, as well as making
and enforcing assessments of owners
for maintenance and improvement expenses.

HOA Responsibilities

It is common for a homeowners association to handle all or some of the

following:
1. Establish and collect maintenance fees needed to run neighborhood operations
2. Maintain community landscaping
3. Maintain recreational facilities
4. Provide space for events or
neighborhood functions
5. Provide security
6. Arrange for street maintenance
7. Enforce deed restrictions including exterior home maintenance, commercial use of properties and control of trash Common Areas
Generally, the association is
responsible for repairing, replacing or
maintaining the common area. Common areas may include streets, roadways, sidewalks, parking areas, swimming pools, tennis courts and playgrounds as well as all trees, shrubbery, other plants, landscaping and
any items of personal property located in those areas. This includes
repair and maintenance made necessary due to the presence of wooddestroying pests.

Architectural Controls

for the community clubhouse. Typically two-thirds of the homeowners

Architectural controls are generally must approve a special assessment.
part of the CCRs. The nature of the
architectural controls depends on the
type of development. If the develop- D Reserves
ment consists of undeveloped lots, the Generally, an association is not percontrols will govern the design of the mitted to spend reserve funds for
houses that can be built on the lots. any purpose other than the repair,
If the development consists of single- restoration, replacement or maintefamily houses, the controls will gov- nance of, or litigation involving the
ern the yards and fences as well as repair, restoration, replacement, or
changes in the houses. If the develop- maintenance of, major components
ment consists of townhouses or con- that the association is obligated to redominiums, the controls will govern pair, restore, replace or maintain and
the external appearance of the units for which the reserve fund was estaband certain internal conditions that lished.
may affect neighboring units.
Initially, the developer has
E Questions for the Attorcontrol over architectural standards.
neys
However, once the developer has sold
all of his or her interest in a de- How do I find out whether my homevelopment, the developer loses that owners association has sufficient recontrol. Then the responsibility of serves for future repairs and mainteenforcing the architectural controls nance so special assessments wont be
falls to the homeowners association needed? My condominium complex
or sometimes to an architectural con- is having major projects like rooftrol committee set up by the asso- ing and painting done, but my buildciation and composed of association ing seems to always be last on the
members.
list, and it doesnt seem fair. Can I
do anything? I cant afford to have
repairs made to my homes exterior
C Maintenance Fees
right now; can my homeowners assoHomeowners associations can usu- ciation force me have the work done
ally require members to pay fees for based on the terms in the CCRs?
common property maintenance and
expenses like insurance. Fees vary deHomeowners Aspending on the community amenities, 9
such as a swimming pool, commusociation Meetings
nity club house, park or golf course.
Fees can be raised each year but there Common interest developments,
is usually a yearly cap stated in the which might be condominiums,
CCRs. In addition to maintenance planned unit developments with sepfees, homeowners associations can arate home sites or planned resicollect special assessments for capi- dential developments consisting of
tal improvements, such as a new roof common areas and separate interests
14

are managed by an association, which

is structured as a nonprofit corporation or unincorporated association.
These managing entities are commonly referred to as homeowners
associations. A homeowners association is responsible for managing
and maintaining the improvements
and common areas, administering the
rules and regulations governing use of
the various recreational facilities and
common areas, making and enforcing
assessments owed by owners for maintenance and improvement expenses
and meting out private quasi-judicial
decisions regarding violations of the
covenants, conditions and restrictions
of the development. The homeowners association essentially serves as a
private government for its members.

forth in the association bylaws. These

meetings allow community members
to communicate with members of the
association. They provide the board
with time to get input from the members and to obtain their comments
on board actions or proposals. Also,
elections of board members take place
at most annual meetings.

Governing Body Meetings

Regular meetings of the governing

body of the association are held according to the association bylaws.
Ordinarily the meetings are held once
a month, but the bylaws may provide
for meetings as infrequently as every
six months if more frequent meetings
are not needed.
The board of directors sets
A First Meeting
the time and place for regular board
The life of a homeowners association meetings. The meeting place ordinarbegins with the first meeting of own- ily is within the development unless,
ers. Generally, the first meeting must in the judgment of the board, a larger
be held within a certain amount of meeting room is needed than exists
time, such as six months, after the within the development, in which case
closing of the sale of a certain num- the room selected must be as close as
ber of units. The first election of a possible to the development. Often a
governing body for the association is board will try to use space at a nearby
conducted at the first meeting of own- school, library, church, or local govers, and all positions on the govern- ernment building.
ing body are filled at that election.
Typically, after the first general meetD Calling a Meeting
ing has been adjourned, an organizational meeting of the first board of Usually, the board of directors (or
directors is held to elect the officers other governing body) must promptly
of the board and to consider how the schedule a special meeting of the
association should be run.
members if the board votes to hold
such a meeting or receives a written
B Annual Member Meet- request signed by members representing a certain percentage of the total
ings
voting power of the association. A
Members meetings are usually held special meeting must also be called
once a year at a time and place set as a prerequisite to filing a civil suit
15

against the developer for alleged damage to the common areas or to specified separate interests in the development.

Attendance

Any member of the association may

attend regular and special meetings
of the governing body. A member
is permitted to speak at any board
of directors meeting, except when the
board meets in executive session. The
board is allowed to establish a reasonable time limit and rules for members
to speak at or before meetings.
The governing documents establish a quorum for the transaction
of business at a meeting of members, so its important to have that
minimum number of board members
present at meetings. Special quorum
requirements may apply in situations
such as when the board is seeking to
increase assessments or to impose a
special assessment. In the absence
of a quorum at a members meeting,
a majority of those present in person or by proxy, which is a document
empowering a person to act for another, may adjourn the meeting to
another time but may not transact
any other business. The quorum for
an adjourned meeting may be set at
a percentage less than what is set for
the regular meeting.

Notice Requirements

Unless the time and place of meetings

is fixed by the bylaws, members must
be given notice of the time and place
of a meeting, except for an emergency
meeting, a set number of days before
the meeting.

Notice is generally posted in

a prominent place or places within
the common areas, and by mail to
any owner who has requested notification of board meetings by mail, at
the address requested by the owner.
If the common area consists only of
an easement or is otherwise unsuitable for posting of the meeting notice, the governing body must communicate the time and place of the
meeting by appropriate means. Notice may also be given by mail or delivery to each unit or by association
newsletter. The notice must include
the meeting agenda.
Notices of meetings must
specify those matters the board intends to present for action by the
members. However, any proper matter may be presented at the meeting
for action, unless prohibited by law.

Special Meetings

Action without Meeting nances, such as record keeping re-

Usually, the governing body or board

may take actions without a meeting if
all of its members consent in writing
to the action to be taken. If the governing body resolves by unanimous
written consent to take action, an explanation of the action taken must be
posted at a prominent place or places
within the common areas within a few
days after the written consents of all
governing body members have been
obtained. If the common areas are
unsuitable for posting the explanation of the action taken, the governing
body must communicate the explanation in an appropriate manner, such
as by mailed notices.

10

Finance Basics of
Homeowners Associations

Typically, youll find a homeowners association (HOA) in a complex, and sometimes in a subdivision or a planned unit development
(PUD). Regardless of the location,
HOAs are a fundamental element in
such communities because most often they have the job of making
sure that property is well maintained.
They do this by making sure that
the common areas, like roads, parkH Meeting Minutes
ing lots, and recreational facilities,
The minutes or summary of minutes are in good repair and condition, and
of any meeting of the board of di- also by making sure that buildings in
rectors, other than an executive ses- the community are structurally sound
sion, is usually available to members and not eye sores.
within 30 days of the meeting. The
To do all of this, HOAs need
minutes are distributed to any mem- money, which they raise in various
ber upon request and reimbursement ways.
In addition, almost every
of cost.
state has detailed laws on HOA fiTypically, the board of directors must
promptly schedule a special meeting
of the members if the board votes
to hold such a meeting or receives
a written request for such a meeting signed by members representing a
certain percentage of the total voting
power of the association.

16

quirements for financial records. If

your condominium or subdivision
has a homeowners association, or if
youre thinking of buying a home in
an area with an HOA, its a good idea
for you know some of the HOA finance basics.

Initial Finances

Often, a developer takes out a loan

from a private bank or mortgage company and uses it to create an HOA,
that is, he or she will build a complex
or subdivision and create an HOA
to manage it. The HOA membership consists of the property owners
in the development. A typical loan is
called an interim loan, and its not
intended to be long-term or permanent financing. Rather, its repaid
as units-either condos or homes-are
sold. So, the units in the HOA or
PUD are like inventory, and the
interim loan enables the developer
build and sell units until the project
is complete and all units are sold.
When a unit is sold, the
buyer-owner will be subject to a number of governing documents for the
development. This can include the
HOAs covenants, conditions and restrictions (CCRs), which typically
restrict and limit how the owner can
use the property. Examples of CCRs
include things like a ban on pets and
how many cars you can park in the
parking lot.
Typically, anyone who buys a
home within the HOAs boundaries
automatically becomes a member.
Member-owners are then charged fees
and assessments, which are usually
charged and collected monthly, and
are used for things like landscap-

ing, snow removal and road maintenance. Also, there may be special
assessments, which are used to pay
for emergency repairs or repairs and
maintenance costs that were not included in the HOAs budget.

HOA Financials

ment Depending on the size of the

HOA, it might be required to have a
certified public accountant perform a
yearly audit In some states, the HOA
must provide these financial documents to the owners/members within
a certain period of time and without being asked. Often, they will be
posted in a common area, like a recreation room or facility, or its common
for HOAs to have their own Web site
where these materials can be posted.
In some states, however, the HOA has
to provide these financial materials
only when an owner makes a written request for them. So, be certain to check the laws in your area
if youre trying to obtain financial
records from your HOA.

Also, even if the HOA is tax exempt, it must file a federal tax
return.
The tax exemption excludes
from the HOAs gross income all of
the membership dues, fees, or assessments collected by the HOA. Essentially, then, a tax-exempt HOA is
taxed only on its investment income,
if it has any, and any other income
it might have, such as from renting out a recreational facility to nonmember/owners.

In almost every state, there are

specific, detailed laws that govern
HOAs, and particularly their financial records. Although the laws and
their requirements vary by state, generally HOAs must perform various
tasks with respect to their finances,
11 HOA Assessments
including:
Create and maintain a fund
and Fees
of fees and assessments collected by
The difficulty arises from the diffuse
the HOA from owners/HOA memnature of both its topic and Homebers Make an operating budget, typC HOAs Taxes
owners associations (HOAs) have the
ically for a calendar year, that shows
projected income from fees and as- Another important aspect of HOA right to impose assessments and fees
sessments and itemizes how the HOA finances is tax liability. Generally, on each member of the association
to pay for the HOAs operations and
plans to use any funds throughout HOAs are exempt income taxes if:
maintenance expenses. Assessments
the year, such as paying the costs of
1. Most of its units are used by in- can be regular or special, depending
landscaping, repairs to common ardividuals as residences
on the purpose for which they are
eas, and building maintenance Cremade. Assessments are calculated,
ate and maintain monthly and yearly
2. Its organized and operated to collected and enforced in the manrecords on how much money the HOA
buy, build, manage, maintain, ner required by law and as provided
has received, how any funds have
and care for HOA property
by the HOAs governing documents.
been spent, and the current balance
Regular assessments are made to deof the HOAs fund Store all receipts
3. At least 60% of its gross income
fray expenses related to the ownerfor money spent by HOA from the
for the taxable year comes from
ship, operation, or furnishing of comHOA fund Create and maintain a remembership dues, fees, or asmon interests or to the enjoyment
serve fund from fees and assessments
sessments
of mutual and reciprocal rights of
collected by the HOA, which can used
only for unexpected emergency re4. None of the HOAs net earnings use. For instance, the revenue genpairs, such as sudden damage from
or income goes to any individ- erated by regular assessments can be
bad weather or natural catastrophes,
ual, except if its by a rebate of used for the repair and maintenance
or for the future repair, replacement,
excess membership dues, fees, of common property, such as lobbies,
community centers, common roofs,
or maintenance of the major compoor assessments, for example
parking lots and garages.
nents of the complex or subdivision,
such as building surfaces of the con5. State law require the HOA to
Special assessments are made
dominium buildings, streets and sewmake an election to be treated for capital improvements or for other
ers, and heating and cooling equipas a tax-exempt organization. purposes, such as replenishing a re17

serve fund that was spent on unexpected maintenance projects.

The governing documents of
the development, such as the declaration of covenants, conditions and
restrictions (declaration or CCRs)
and the bylaws, should describe the
assessment process, including how
much the assessments can be increased and in what circumstances.

Regular Assessments

Regular assessments against the units

in a common interest development
typically must start on the date of the
first transfer of a unit from the propertys developer or on the first day
of the month following the first conveyance of a unit. Homeowners dont
have voting rights until the HOA
has levied an assessment against their
units.
State laws provide that assessments cant exceed the amount
necessary to defray the costs for
which they are levied. Regular assessments to pay the expenses of the
ownership, operation, and furnishing
of common interests by the association must ordinarily be levied against
each owner according to the ratio of
the number of units owned by the
owner assessed to the total number
of units subject to assessments. So,
if an owner has three units out of a
total of 50 units, the owner will be
responsible for 3/50 of the total assessment, assuming that all units are
the same size. Adjustments in the ratio can be made if an owner gets a
greater benefit from the services than
other owners.
An HOA may increase the
regular assessment up to a certain
percentage of the prior years assess-

ment, provided that the board of directors has distributed an operating

budget for that year or a majority of
homeowners approves the increase. If
the increase exceeds that percentage,
approval by a majority of homeowners is required.

Special Assessments

An HOA cant impose or collect a

special assessment that exceeds the
amount necessary for the purpose or
purposes for which it is levied.
In any fiscal year, special assessments cant exceed a certain percent of the budgeted gross expenses
of the association for that fiscal year
without the approval of the majority
of homeowners. There are exceptions
to the limits on special assessments in
emergency situations.

of

2. A late charge
3. Interest on all sums due
4. If a homeowner fails to pay the
assessment, the HOA has several options:
5. File a civil action in small
claims court (if the amount due
meets the courts requirements)
6. Record a lien on the homeowners unit or separate interest and delay foreclosure until the amount due equals a
pre-determined amount or the
assessments are more than 12
months delinquent
7. Record a lien on the homeowners separate interest and
foreclose on the lien

Assess-

8. Any other manner provided by

law

Assessments are made according to

the schedule indicated in the HOAs
bylaws or CCRs. The HOA must
send or deliver notices of each homeowners assessment amount to the
homeowner. The homeowner then
has a specified number of days in
which to pay the assessment amount.

9. If the HOA is going to file a

lien on the homeowners unit,
at least 30 days before filing the
lien, it should send the owner
of record a notice including,
among other things:

Collection
ments

ment, including reasonable attorneys fees

Enforcement of Assessments

Regular and special assessments are

delinquent a specified number of days
after they become due. If an assessment is delinquent, the association
may recover all of the following:
1. Reasonable costs incurred in
collecting the delinquent assess18

(a) A general description of

the HOAs collection and
lien enforcement procedures
(b) The method of calculation
of the amount due
(c) A statement that if the
homeowners separate interest is placed in foreclosure because the homeowner is behind in his or
her assessments, it may be
sold without court action

(d) An itemized statement of

the charges owed by the
homeowner
(e) The right to dispute the
assessment debt by submitting a written request
for dispute resolution to
the HOA
(f) The right to request alternative dispute resolution
with a neutral third party
before the HOA may initiate foreclosure
(g) To establish the lien, the
HOA must record a notice of delinquent assessment in the county where
the owners unit is located.
The notice must comply
with the requirements of
state law. Thirty days after the lien is recorded,
it may be enforced in
any manner permitted by
law, including sale by the
court, sale by the trustee
named in the notice of
delinquent assessment, or
sale by a properly substituted trustee.

Restrictions on Transfer Fees

2. The reasonable cost of furnishing documents and assessment

statements required by law

12

Nuisance

A nuisance is a use of property that

causes injury to others.
A private nuisance is an
unreasonable interference with the
use and enjoyment of property
of another, usually an adjoining
landowner. A public nuisance is one
that may cause a broader, more general harm to the public. A classic example of a nuisance is conducting any
ultra-hazardous activity such as the
use of explosives or the handling of
acutely toxic materials.

Stopping a Nuisance

A nuisance may be stopped, or

abated, by a legal action usually
brought by a private property owner
against an adjacent property owner.
An action to abate a public nuisance
may also be brought by government
unless the nuisance interferes with a
common right of the public. Nuisance
actions may be brought under federal
or state law.

HOAs may be prohibited by state B Environmental Laws vs.

Nuisance Actions
law from imposing any assessment,
penalty or fee in connection with a
Prior to the enactment of environtransfer of title or any other interest
mental laws, nuisance actions were
except for an amount to cover:
often used to control or limit envi1. The HOAs actual costs to ronmental hazards. With the enactchange its records and
ment of environmental laws specifi-

19

cally regulating activities that constitute a nuisance, questions have arisen

as to whether the environmental laws
preclude nuisance actions objecting
to a use which is covered by those
laws.
Generally, nuisance actions
are considered a supplement to regulation and litigation under the environmental laws. Although, in some
situations, nuisance actions will be
precluded. If Congress intended the
environmental statute to be the exclusive remedy for a particular offensive use or condition, a federal
or state common law nuisance action
may be precluded.

Determining Unreasonable Use of Property

In a nuisance action, determining

whether a particular activity constitutes a nuisance usually revolves
around the question of whether the
defendants use of the property is
unreasonable under the circumstances. In a private nuisance action,
determining what is an unreasonable use of a particular property usually involves, either explicitly or implicitly, consideration of the character
of the surrounding area and whether
the particular use preexisted the presence of the complaining party.
For example, the maintenance of manure piles on a farm may
be considered reasonable, especially
if the farm and the manure piles existed long before an adjacent residential area from which complaints have
arisen.

13

Resources

1. Owners Education videos Homeowner Associations (HOA) 11 videos 1 hour, 9 minutes Owner Education Videos
View full playlist (7 videos)
2. Board Members Education HOA 27 videos 9 hours These videos provide some basic information you need to
know to be effective. HOA Board Members Education Full playlist (27 videos)
3. The Who, What, When and How of the Architectural Review Process for HOA. 1 video 1 hour HOA Architectural Review Process)
4. Communications for HOA: 7 videos 26 minutes HOA Communications Training Video View full playlist (7
videos)
5. Maintenance for HOA: 14 videos 1 hour, 39 minutes Videos providing information regarding maintenance
operations for condominium and homeowner associations:HOA Maintenance Training Video View full playlist
(14 videos)
6. Homeowner Association Issues 7 videos 36 minutes HOA Issues Training Video View full playlist (7 videos)
7. Finances for HOA : 31 videos 11 hours:Understanding the financial operations of homeowner associations:HOA
Finance Training Video View full playlist (31 videos)
8. A Sample Governing Document CC&R for HOA :CC&R
9. Another Sample : CC&R
10. Community Association Law: Halpern Rodriguez, LLP: Detailed services for Community Association Laws

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