Not So Voluntary HOAs

“But the association is voluntary and the rules don’t apply to my property.” This is a common statement we receive when dealing with survey related issues in a voluntary HOA. While mandatory Home Owner Associations (“HOA”) are common in our area, there are a few communities with voluntary HOAs. So what is the difference? Simply put, if you live in a community with a mandatory HOA, you must join the association, abide by all of its rules and restrictions, and of course pay all of the dues. In a community with a voluntary HOA, homeowners are not required to join, do not need to pay dues, and do not need to abide by the rules and restrictions — at least not all of them.

A common misconception among many homebuyers is that they will not need to follow any of the rules of an HOA when purchasing in a community where membership is optional. While this is true in part, when buying in a “Deed Restricted” community with a voluntary HOA there are often important property related restrictions that the new property owner must comply with. For example:

1. Setback Lines. Many communities, with both voluntary and mandatory associations, have setback line requirements. These lines are established by the HOAs and local municipalities in order to create uniformity in regards to where residences are located on lots, and to create the desired spacing between residences. Permanent structures cannot be built beyond the established setback lines on each lot, regardless of whether the lot owner chose to join the voluntary HOA. Setback line locations and restrictions can be found in the HOA’s Declaration of Restrictions or on the Plat, which are recorded in the Public Records of the county where there property is located. Locating setback lines is one of the many reasons we strongly encourage homebuyers to obtain a new survey when purchasing a property. If a permanent structure is encroaching into a setback line, obtaining a variance may be required in order to comply with the HOA or county rules and to convey clear and marketable title to a buyer.
2. Aesthetic Restrictions. Deed Restricted communities often have strict restrictions regarding the style and type of home that can be built in the community. This often includes restrictions involving color schemes, landscaping, lawn decorations, etc. Opting out of the community’s voluntary HOA does not mean that you can disregard these restrictions. Besides, you don’t want to be those neighbors who insist on painting their house the colors of their favorite football team.
3. Other Restrictions. Some of the many other common restrictions in Deed Restricted communities involve fences, pets, parking, the types of vehicles that can be parked throughout the community, and many more.

Another common misconception is that only the association has the right to enforce the restrictions. This can cause a property owner to be complacent when reviewing the restrictions of a voluntary association. Significantly, any property owner within the association can file an action to seek the enforcement of the restrictions. We all know that one pesky neighbor that likes to stir the pot whenever possible.

When buying in any community in our area, it is very important to know exactly what the rules and restrictions are before you buy and which of those rules you will need to comply with regardless of whether the association is voluntary or mandatory. The cost of bringing a property into compliance with the community requirements can be time consuming, expensive, and can quickly derail a closing if it is discovered mid transaction. As such, it is important to identify these issues early on in the process of purchasing a home.

As always, if you have any questions regarding HOAs and their impact on your home buying decision, please do not hesitate to contact your local real estate attorney.

Berlin Patten Ebling, PLLC

Article Authored by Andrew Conaboy

This communication is not intended to establish an attorney client relationship, and to the extent anything contained herein could be construed as legal advice or guidance, you are strongly encouraged to consult with your own attorney before relying upon any information contained herein.

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