BrianB (California)
Posts: 2,820
Posts: 2,820
Posted:
After a couple years (has it been that long????) here on the board, i decided to try to write up a short, quick FAQ on some common legal issues that plague many HOA's. What I would love from the esteemed folks here is a critique: What more do I need? What other subjects should I catch? Do I need to include references and citations? Or is that too much? DID I GET ANYTHING WRONG? Your comments will be captured and added to my document as they apply.
I would preface this with the standard warnings: this is not legal advice, every state varies, know your own state laws, everything cannot be accurate for every situation, your own CC&R's may be different, your mileage may vary, batteries not included, misuse may cause death, etc..
The ADA: American’s With Disabilities Act: The ADA only applies to an HOA if they are engaged in the Employment of the individual, providing a Public Service as a public agency (ie, government), providing public transportation, are running a Public Accommodation (ie, something engaged in business with the general public), engaged in Telecommunications, or are Congress themselves.
Government Agencies: HOA’s are not State or Local Government bodies, agencies, etc., so any laws that apply only to government bodies (some sunshine laws, etc.) would not apply.
Sunshine Laws/Open Meetings Acts: Read the law carefully. Many such laws are written specifically for GOVERNMENT AGENCIES, and thus, do not apply to HOA’s.
Fair Housing Act: This body of law MAY apply to some HOA’s. If the HOA was built as part of a federal program, it may apply. If the HOA is a condo, apartment complex, or any sort of home OTHER THAN a single family house, the Fair Housing laws MAY apply. If the home being discussed is rented out and/or is part of a larger business run by an owner with multiple rentals, it may apply. If that home is being advertised with a realtor, lawyer, etc., the FHA may apply as well.
In general, the Fair Housing Act would NOT apply to a single family home owner selling or renting his home by himself, nor to an HOA consisting of single family homes owned by individual owners, EXCEPT for one provision: No matter your status, the FHA makes it unlawful to make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.
Privacy Laws: Privacy laws vary state to state. It is best you know your state completely.
Videotaping: In General, HOA’s are allowed to video tape common areas, but many states would require a posted notice that such taping is on going. It’s a good idea to post the notice. HOAs can, in some states, ban the recording of their meetings. However, MANY states have specific laws that allow any HOA member to record the meeting for their own purposes, so check your state. Other states have no law, but in general, the owner may be allowed to tape the meeting anyway, because many states require that only ONE party be aware that recording is occurring (and the homeowner is that party). In general, it’s a smart idea to simply have some guidelines to allow it to occur, openly and under some control.
Records: HOA records are not public documents and are not open to the scrutiny of the general public. They are business records. Some states specify exactly WHAT records must be kept and the process for reviewing them by an owner. Other states do not. Your CC&R’s probably have a statement about viewing records as well. In general, records of the HOA are viewable by any owner upon request. Your HOA will have to look closely to see what your state and own documents include in that term “records”. It is a good idea to have a guideline in place about this, detailing what records ARE available, how to request a viewing, where they are held, acceptable times to view, etc.. Some HOA’s charge for copies, others do not, it’s a smart idea to have a guideline on this that complies with any state laws (some states specify a charge allowed, number of copies to be done, etc.).
There is a LOT of debate on the legality of publishing delinquent owner’s list with names. The best that can be said is that in general, while it is not probably illegal to publish said names among the owners of the HOA, it is thin legal ice on a slippery, greased slope. It would only take one mistake to cross a thin line and be considered illegal under some act.
Debt Collection: In general, if an HOA is acting to collect their own legal debts, MOST debt collection laws do not apply. You cross the legal line, however, if you hire someone to do it (a management company, debt agency, even a lawyer). THOSE people must follow the law.
I would preface this with the standard warnings: this is not legal advice, every state varies, know your own state laws, everything cannot be accurate for every situation, your own CC&R's may be different, your mileage may vary, batteries not included, misuse may cause death, etc..
The ADA: American’s With Disabilities Act: The ADA only applies to an HOA if they are engaged in the Employment of the individual, providing a Public Service as a public agency (ie, government), providing public transportation, are running a Public Accommodation (ie, something engaged in business with the general public), engaged in Telecommunications, or are Congress themselves.
Government Agencies: HOA’s are not State or Local Government bodies, agencies, etc., so any laws that apply only to government bodies (some sunshine laws, etc.) would not apply.
Sunshine Laws/Open Meetings Acts: Read the law carefully. Many such laws are written specifically for GOVERNMENT AGENCIES, and thus, do not apply to HOA’s.
Fair Housing Act: This body of law MAY apply to some HOA’s. If the HOA was built as part of a federal program, it may apply. If the HOA is a condo, apartment complex, or any sort of home OTHER THAN a single family house, the Fair Housing laws MAY apply. If the home being discussed is rented out and/or is part of a larger business run by an owner with multiple rentals, it may apply. If that home is being advertised with a realtor, lawyer, etc., the FHA may apply as well.
In general, the Fair Housing Act would NOT apply to a single family home owner selling or renting his home by himself, nor to an HOA consisting of single family homes owned by individual owners, EXCEPT for one provision: No matter your status, the FHA makes it unlawful to make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.
Privacy Laws: Privacy laws vary state to state. It is best you know your state completely.
Videotaping: In General, HOA’s are allowed to video tape common areas, but many states would require a posted notice that such taping is on going. It’s a good idea to post the notice. HOAs can, in some states, ban the recording of their meetings. However, MANY states have specific laws that allow any HOA member to record the meeting for their own purposes, so check your state. Other states have no law, but in general, the owner may be allowed to tape the meeting anyway, because many states require that only ONE party be aware that recording is occurring (and the homeowner is that party). In general, it’s a smart idea to simply have some guidelines to allow it to occur, openly and under some control.
Records: HOA records are not public documents and are not open to the scrutiny of the general public. They are business records. Some states specify exactly WHAT records must be kept and the process for reviewing them by an owner. Other states do not. Your CC&R’s probably have a statement about viewing records as well. In general, records of the HOA are viewable by any owner upon request. Your HOA will have to look closely to see what your state and own documents include in that term “records”. It is a good idea to have a guideline in place about this, detailing what records ARE available, how to request a viewing, where they are held, acceptable times to view, etc.. Some HOA’s charge for copies, others do not, it’s a smart idea to have a guideline on this that complies with any state laws (some states specify a charge allowed, number of copies to be done, etc.).
There is a LOT of debate on the legality of publishing delinquent owner’s list with names. The best that can be said is that in general, while it is not probably illegal to publish said names among the owners of the HOA, it is thin legal ice on a slippery, greased slope. It would only take one mistake to cross a thin line and be considered illegal under some act.
Debt Collection: In general, if an HOA is acting to collect their own legal debts, MOST debt collection laws do not apply. You cross the legal line, however, if you hire someone to do it (a management company, debt agency, even a lawyer). THOSE people must follow the law.