What Can Homeowners Do When the HOA Board Is Not Following the Governing Documents?

Homeowners associations are created to operate under a written set of rules. Those rules usually include the declaration of covenants, conditions, and restrictions, often called the CC&Rs or declaration, along with bylaws, articles of incorporation, architectural guidelines, election rules, collection policies, enforcement policies, and other adopted operating rules.

When the board of directors follows those documents, the association is more likely to operate fairly, consistently, and transparently. When the board ignores them, homeowners may feel frustrated, powerless, or unsure what to do next.

The good news is that homeowners usually have options. The best approach is rarely to jump immediately into a lawsuit. In most cases, members should first identify the specific violation, gather documents, communicate clearly, request records, use internal procedures, and then evaluate whether stronger action is necessary.

This article provides a general roadmap for homeowners who believe their HOA board is not complying with its responsibilities.

Start With the Governing Documents

The first question is not whether the board is being annoying, slow, unfair, or difficult. The first question is:

What specific duty is the board failing to perform?

An HOA board’s responsibilities are usually found in several places, including:

• The declaration or CC&Rs;
• The bylaws;
• The articles of incorporation;
• Architectural guidelines;
• Rules and regulations;
• Collection policies;
• Enforcement policies;
• State HOA statutes;
• Nonprofit corporation laws; and
• General fiduciary duty principles.

For example, if the issue involves common area repairs, the CC&Rs may explain what the association must maintain. If the issue involves elections, the bylaws and state statutes may control. If the issue involves records, state law may identify what members are entitled to inspect and when the association must respond.

Homeowners should try to connect the board’s conduct to a specific requirement. A complaint that “the board is not doing its job” is much less effective than a complaint that says:

“The CC&Rs require the association to maintain the common area roof system. The board has received repeated written notice of active leaks affecting Unit 12, but has not inspected, repaired, or provided a plan for repair.”

Specificity matters.

Common Examples of Board Noncompliance

Board noncompliance can take many forms. Common examples include:

• Failure to maintain or repair common areas;
• Failure to enforce the governing documents in a fair and consistent manner;
• Selective enforcement against certain owners while ignoring similar violations by others;
• Refusal to provide association records that members are legally entitled to inspect;
• Holding improper closed meetings or failing to provide required meeting notices;
• Taking action without proper board approval;
• Failing to conduct elections as required by the governing documents or state law;
• Improperly approving or denying architectural applications;
• Failing to follow assessment collection procedures;
• Spending association funds for improper purposes;
• Failing to obtain required insurance;
• Failing to prepare budgets, reserve studies, or financial disclosures where required;
• Refusing to address safety, nuisance, or maintenance issues; and
• Ignoring member complaints without investigation or response.

Not every poor decision is unlawful. Boards often have discretion, and courts generally do not second-guess reasonable board decisions made in good faith, after reasonable investigation, and within the board’s authority. However, board discretion is not unlimited. A board generally cannot ignore mandatory duties, violate the governing documents, act in bad faith, discriminate, retaliate, or enforce rules arbitrarily.

Step One: Organize the Facts

Before taking action, homeowners should organize the facts. This helps determine whether the issue is a legal violation, a misunderstanding, a communication problem, or a policy disagreement.

A useful timeline should include: