Buying Into an HOA Is Not a Board Blank Check
“You Chose to Live in an HOA” As Defense Of New HSW Rules Misses the Point
A familiar response appears whenever an HOA dispute over rules and board authority makes its way onto Facebook, Nextdoor or a neighborhood discussion: No one forced anyone to purchase a home in an HOA. If you buy in an HOA, pony up and abide by the rules—or buy somewhere else.
Sometimes it goes further: Many people buy in an HOA precisely because they want their neighbors’ behavior controlled.
There is enough truth in those statements to make them sound persuasive. But they skip the question that matters most.
Start by Giving the Argument Its Due
An owner who purchases in an HOA buys property subject to recorded covenants and a statutory governance system. For purposes of this discussion, assume the buyer understood that and knowingly chose it.
Even then, one thing does not follow: Consent to HOA governance is not consent to every future exercise of HOA power.
The owner did not thereby agree that every rule a future board adopts will be valid, every interpretation of the governing documents will be correct, or every enforcement decision will be lawful. That is the distinction the “you chose an HOA” argument too often ignores. We suggest more on the idea of HOA buyer "consent" is needed and found here: CC&Rs and "constructive consent".
Yes, Owners Must Follow the Rules
Of course they do. But which rules?
Nevada law itself places limits on association rulemaking. Among other things, association rules must be reasonably related to their purpose, sufficiently explicit, consistent with the governing documents, non-arbitrary and uniformly enforced under similar circumstances. A rule that is not uniformly enforced may not be enforced against an owner.
But “follow the rules” cannot mean: Whatever the board says today is the rule. It means owners must comply with valid governing documents and valid rules adopted and enforced within the authority Nevada law gives the association. Read more: How Nevada HOA Policy Is Made—Or Not.
Boards have rules too. We recommend reading our post HOA Boards & The “Right to Be Wrong" But Not To Be Abusive.
That Matters Even More With HSW Fines
The recent debate over health, safety and welfare fines makes the distinction particularly important.
Nevada law ordinarily limits HOA fines to $100 per violation and $1,000 per hearing. But when the executive board determines that a violation poses an imminent threat of causing a substantial adverse effect on the health, safety or welfare of owners or residents, those ordinary limits do not apply in the same way. The statute expressly gives the executive board the role of determining the amount of an HSW fine in accordance with the governing documents and applicable regulations.)
So imagine an owner is told: “You bought into an HOA. Pay the fine and follow the rules.” That skips the real issue. The dispute may not be about whether the owner must follow a rule at all.
It may be about whether the conduct was actually a violation, whether the board had authority to classify it as an HSW matter, whether the classification satisfies the legal standard, or whether the punishment imposed was authorized.
Those are governance questions. They cannot be answered simply by saying: “You chose to live here.”
“People Buy in HOAs to Control Their Neighbors”
That argument deserves attention too. Many owners undoubtedly value HOA living because they want neighborhood standards enforced. They may want yards maintained, homes kept in reasonable condition, architectural standards followed and genuine nuisance behavior addressed.
Fair enough. But that bargain runs in both directions.
The owner who expects the neighbor to obey the CC&Rs should also expect the board to obey them. The owner who expects rules to be enforced should also expect them to be lawfully adopted and uniformly enforced. And the owner who wants protection from an unreasonable neighbor should be equally concerned about protection from an unreasonable board.
HOA governance was never supposed to mean: Owners obey. Boards decide. Both are constrained.
HSW Makes the Old Argument More Dangerous
This is why the casual response “then don't live in an HOA” becomes particularly unsatisfactory when extraordinary enforcement authority is involved.
Nevada did not simply give boards authority to enforce ordinary community standards. It created a separate category for violations posing an imminent threat of substantial adverse effects on health, safety or welfare, with potentially much more serious financial consequences.) With greater enforcement power should come greater attention to whether the board is actually operating within the authority granted. Read more: A Dangerous New HOA Weapon — and Owners Are the Target.
Instead, the “you chose an HOA” argument tends to do the opposite. It treats the fact of ownership as the answer to the legality of the board's conduct. It isn't.
Ask the Right Question
When an owner challenges an HOA action, the first response should not be: “You agreed to live in an HOA.” That tells us almost nothing about the dispute.
The useful questions are:
What rule was allegedly violated?
Where does the association get the authority, it claims?
Was the rule validly adopted and uniformly enforced?
Does the conduct actually satisfy the legal standard the board is invoking?
And did the board stay within the limits Nevada law places on its power?
An owner can fully accept the obligations of HOA living and still ask every one of those questions.
In fact, anyone who believes HOA rules matter should insist that the rules governing the board matter too.
Buying into an HOA means accepting a system of governance. It does not mean surrendering the right to question whether those doing the governing are following it.
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