Can the HOA sue in a voluntary HOA?

Deborah Goonan, in her blog post, Independent American Communities by Deborah Goonan, quoting the article, Do Voluntary Civic Associations Have Authority to Enforce Their Covenants and Restrictions Over Real Property? raises a very important subtle issue of distinction —  powers of voluntary HOAs over nonmembers.

While homeowners with a voluntary HOA well understand that they are not required to pay assessments, they presume that they are not subject to the enforcement of CC&Rs by the HOA. Deborah quotes from the article, my emphasis, Usually when an association is labeled “voluntary” it means the payment of dues and assessments by its members is voluntary, not the obligation of owners to abide by the covenants and restrictions.

The article makes the argument that the voluntary HOA, where given power by the state, can enforce the CC&Rs, not its rule and regulations or fines, or anything else pertaining to its members.  In order to enforce its “rules” on nonmembers, the HOA must first amend the CC&Rs, which requires a vote of all the homeowners. Nonvoluntary HOAs use the term “members” since all lot owners are members, while the amendment procedure for voluntary HOAs usually refers to all “lot owners.”  Big distinction!

SO, if the HOA comes knocking, check these requirements out. If the HOA does not meet these requirements, any legal suit can be denied as having no standing, or legal right, to sue.

Published in: on October 22, 2018 at 10:08 am  Comments (1)  

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  1. George, there are voluntary HOAs such as Forest Hill Owners Association, Cleveland, OH, where membership in the HOA is voluntary — a small annual contribution. There’s no common area to maintain. But all of the homes are bound by a set of deed restrictions as to appearance and use of the lots and homes. Every home/lot is subject to these deed restrictions and the voluntary membership HOA has the authority to enforce CC&Rs.

    (https://independentamericancommunities.com/2017/04/03/one-toxic-personality-threatens-to-destroy-voluntary-hoa-in-historic-neighborhood/)

    Some owners in the neighborhood want to convert Forest Hills HOA to a mandatory association. Many do not want a mandatory HOA. I don’t know if the homeowners fully understand the differences.

    Importantly, you don’t necessarily have to own to participate in a voluntary HOA, you just have to reside in the neighborhood.

    But, George, you make an excellent point — the deed restrictions apply to lot owners — all of them — whether they are members of the HOA or not. Amendements require a vote of the lot owners. The percentage vote needed to amend is specified in the CC&Rs.

    CC&Rs stand independently of an HOA. The CC&Rs are thought of as a legal contract. The HOA, if one exists, is a layer of neighborhood governance. Apples and oranges.

    Thank you for pointing out the distinctions.


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