Can HOA enforce ‘single family’ rules? Can we start our own HOA?

Ask the HOA ExpertsQ: I am a new member of my homeowners’ association (HOA) board. According to our community’s restrictive covenants, homes are restricted to “single family use.” Recently an investor purchased a home, remodeled it and rented it out. Now seven people are living in this home. Does the HOA have any legal option for enforcing our “single family” restriction in this matter?

A: The answer to your question depends in large part on whether your covenants actually define “single family.” You say that seven people live in the home, but you didn’t say if or how they were related.

There is some case law here and in other states that has attempted to clarify the meaning of “single family,” but many of those cases dealt with group homes. The courts focused not on whether the persons living in the home were related by blood or marriage, but whether their living arrangements were similar to that of a traditional “family unit,” such as sharing expenses, household chores and meals.

It will be difficult for you to enforce a “single family” restriction if your covenants do not contain a precise definition of that term. If that’s the case you may want to consider proposing to the members of the community, an amendment to the covenants to clarify exactly what “single family” means – such as “no more than three persons unrelated by blood or marriage.”

Can we start an HOA?

Q: I live in a lakeside community with 40 or so houses. There is a variety of home sizes, ages and values. We have never had a homeowners association. Some residents store boats and jet skis in their driveway or yard, which looks bad. There is nothing to prevent this since we have no restrictive covenants. We have no street lights, sidewalks, pool, or other amenities.

A few homeowners are very vocal in insisting that we not construct these amenities in our neighborhood, even though other neighborhoods surrounding us have them. I have thought of trying to get everyone to agree to start an HOA but I know several people will be adamantly opposed, and I don’t want to cause a rift. How difficult is it to start an HOA in an older neighborhood?

A: I sometimes get inquiries from homeowners upset because their HOA is preventing them from doing something to or on their property, and they don’t like being told by their HOA what they can or cannot do. Your situation describes the benefits that HOAs offer – protection and enhancement of property values, and preservation of aesthetic and architectural integrity. Whether a community with an HOA is right for you depends on what you value most.

While you can certainly start a community association and invite neighbors to join voluntarily as members, there’s nothing you can do to “force” a set of restrictive covenants or other rules onto homeowners who don’t want them.

You could have an attorney draft a set of covenants, and any homeowners that wanted to subject their property to the covenants could do so by signing a consent form to be recorded at the Register of Deeds along with the covenants. The problem is that, unless all homeowners agree to subject their homes to the covenants, you would have a patchwork quilt of homes throughout the community, some covered by the covenants and some not. It really defeats the purpose of living in a deed-restricted community if everyone is not bound by the same rules.

“Ask The Experts” Articles have been Reprinted with permission from the Charlotte Observer and Mike Hunter.

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