Can an HOA do this or that? Ask a different question

The questions too often asked as to whether an HOA can do something;  “is that against the law”; “but State law indicates”; or “my HOA governing documents state I have the following rights but....”.   In most cases the questions reveal a violation of home owner’s rights under the law. The question you should be asking is the one you really don't want the answer to.  You bought your home in the HOA with the understanding that you give up something (home owner’s rights under the covenants, controls and restrictions) to get something (a neighborhood with stable home prices, aesthetically appealing, community amenities, etc.).  You understand that an HOA is a local government of its' own managing the affairs of the community and can collect dues/fees and penalize non-compliance.  This all seems acceptable as you are protected by a full set of home owner’s rights to ensure abusive practices are mitigated, financial accountability is demanded, and governance is executed with open elections, meetings, and management practices. 

Then one day you have a problem with the HOA being in non-compliance with your governing documents.  This could be anything: your rights to records access; meetings and resulting minutes are not conducted according to the by-laws; the HOA reserve funds are depleted or maintenance of common areas is poor and you want answers; the HOA is taking on debt without home owner approval and you want specifics; election irregularities; your fence that was previously allowed and approved is now resulting in fines for covenant infractions; and on and on.  You want answers and an ability to protest for your rights.  You get no answers.  The whole house of cards on HOA home owner’s rights collapses and you ask "can they do that", "isn't that illegal".

In the world of HOA law home owners find out too late that enforcement of covenants, controls, and restrictions is mostly one-sided.  Fortunately, most HOAs comply with their own governing documents and HOA State law.  However, when the all too frequent dysfunctional HOA Board with its' "lifer" and over energetic members govern with secrecy, bullying tactics, and disregard for the law home owners quickly find out what can go wrong and is wrong with our HOA laws.  They are mostly NOT enforceable from the home owner’s perspective. The only venue for complaints and enforceable decisions on HOA home owner complaints is our costly, litigious, and time consuming court system.  This matches the limited funds and time of the home owner against the unlimited funds, time, and HOA attorneys of the Board.  Is this a level playing field?  Any wonder why home owners don’t/can’t pursue their HOA home owner rights?

So the answer to the question "can they do that" is really "what are you going to do about".  The answer you don't want to hear is "not much".   A system where HOA home owner complaints can be handled in an out of court venue with binding decisions that is accessible and affordable is needed.  This will improve upon the enforcement of HOA governing documents ensuring both community and home owner’s rights are affective.   HOA legislative reform is needed and is the only way to handle this imbalance in HOA governance.