Don’t Do It in Your HOA Just Because Nothing Says You Can’t.

I’ve had a bunch of consultations with owners lately and they revolve around something the owners did that the Board did not like. The owners are now under close scrutiny and in some cases have been subject to fines, confrontations by directors or neighbors, or ostracized, making their lives more difficult, precarious, and uncomfortable in their HOA.

Sometimes an owners defense is predicated on the fact that the CC&Rs or rules do not say anything about what the owner did. In other words,  they (innocently sometimes, but not always) believe that since the “thing” they did is not specifically prohibited anywhere in the association governing documents, so they can do it!

Sometimes they claim that their neighbors did it so it must be okay and the Board cannot do anything about it.

One such incidence related to installation of a gate. The documents did not say gates were not allowed, so the owner believed they were. Some neighbors had installed gates, so it must be okay. This  dispute could have erupted into litigation but for a mediation session that brought reality to the forefront. Two pertinent questions in such a dispute are: Board, how much are you willing to spend to try and get rid of the gate? And Owner, how much are you willing to  spend to keep the gate.? Really folks, the sky is the limit in disputes like this.

Another situation involved a driveway expansion. Gee, a neighbor did it so it must be ok. The rules and CC&Rs are silent on driveway aprons so they must be ok.

Another involved rentals. The documents did not say that you could not list your home on Air Bnb or VRBO so why not?

Yet another involved taping a board meeting. The governing documents didn’t say you couldn’t so why not? In this case the owner stood their ground until they were kicked out of the meeting. Embarassing.

If you take the approach that this  or that is ok because the governing documents don’t specifically say it’s not ok, then you may be in for a big pinch of reality. Most governing documents give Boards the right of architectural review and control, and rights to  adopt rules and regulations regarding conduct and disciplinary action for unacceptable actions, and controlling what goes on in association meetings, and give the right to regulate common area as well as areas of the individual property, and parking and vehicular restrictions, etc.

And cases supplement the governing documents and some indicate you cannot do things that aren’t even mentioned in the governing documents.

So if you want to do something that could affect the exterior appearance of your unit, or might be regulated by the CC&Rs, rules, local ordinances (like smoking), and cases (like commercial vs. residential leasing involving vacation rentals and the like), do your investigation before you do your time fighting with the Board, or worse, inviting an attorney foray and arguments, costing you and your association (and you as a member of it) time, energy, emotional stability, and unnecessary attorney fees. And watch out for the attorney advice you get for free on the internet. Some of those bozos think a pat answer is appropriate and don’t get enough information from you before rendering an opinion that could come back to bite you big time by taking you down the wrong path entirely.











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