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What to do when an HOA doesn’t enforce its rules

newsQ: I live in a townhome and condo community with a board of directors and a management company. We have bylaws and CCRs (covenants, conditions, and restrictions) as governing documents.

In the past, these have all been followed and enforced. But over the last few years, our board has refused to enforce the provisions. Some board members are in violation of them and are now changing them without the 67-percent vote of the homeowners as mandated in our governing documents.

The management company allows them to do this and does not advise them otherwise. Meanwhile, our property values continue to decrease and we are being blacklisted by the real estate community because of this.

How do we as homeowners stop this?

A: An HOA really only has two functions: to maintain common areas, and to preserve property values by enforcing the CCRs and the rules and regulations. The HOA’s board has a legal duty to enforce the provisions of the governing documents.

By law, HOA boards must provide homeowners with an opportunity to appear before the board “at regular intervals” to speak about their issues and concerns. I suggest that you start by gathering your like-minded neighbors and request a meeting with the board to air your grievances.

Do your homework, and go prepared with a list of specific examples of violations that have been overlooked or ignored. Take photos where appropriate. For each claimed violation, have a copy of the applicable provision from the CCRs, bylaws, or rules and regulations.

If the board still refuses to take enforcement measures, you have two options. You can follow the provisions in your bylaws for calling a special meeting of the members to remove some or all of the directors from office.

If, however, you do not believe you can get enough votes to recall any of the directors, your other option is to hire an attorney and file a lawsuit against the HOA and the board members for breach of fiduciary duty.

You can ask the court to remove the offending board members from office, or seek an injunction (a court order) requiring them to adhere to the governing documents and begin enforcing their provisions. Litigation can be very costly and time-consuming for both sides, and I recommend it only as a last resort.

Charlotte attorney Michael Hunter focuses on community and condominium association law for the firm of Horack Talley

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“Ask The Experts” Articles have been Reprinted with permission from the Charlotte Observer

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