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HOA Covenants and Assessment Liens

The recorded restrictions that bind every owner in a planned community or condominium, the association that enforces them, and the assessment lien that lets it foreclose on a home for unpaid dues - what the documents control, how they are amended and enforced, and the limits the states have placed on association power.

Informational only - this is not legal advice. These definitions explain general legal vocabulary in plain English. They are not advice about your situation, reading them creates no attorney-client relationship, and the law differs from state to state and changes over time. For advice you can rely on, speak to a lawyer licensed in your state.

What it means

A homeowners' association or condominium association is created by a declaration of covenants, conditions and restrictions recorded against every lot or unit in the development before the first sale. Because the CC&Rs are in the chain of title, each buyer takes subject to them whether or not they read them, and they bind successors indefinitely. The declaration typically establishes the association, obliges every owner to pay assessments for common expenses, restricts use of the property - architectural changes, paint colours, fences, parking, pets, rentals, home businesses - and gives the association's board the power to adopt rules, levy fines and enforce the restrictions in court. Bylaws govern the association's internal workings and rules fill in the detail; where the three conflict, the declaration controls.

The assessment lien is the association's enforcement tool and the one that most often reaches a lawyer. The declaration and, in most states, a statute give the association a lien on each lot for unpaid assessments, late charges, fines in some states, and the costs and attorney's fees of collection. The lien may be foreclosed, judicially or in some states by a non-judicial sale, and in a number of states a portion of it has priority over even a first mortgage recorded earlier. Because the amounts are often small relative to the home's value, most states have added protections: a minimum delinquency before foreclosure may begin, mandatory notices and payment plans, limits on fees, and a right of redemption after sale.

Covenants are enforced by the association and, in most states, by any owner against another; they are interpreted by their language, and courts generally uphold an association's decision if it followed its own procedures and acted reasonably and in good faith. Some restrictions are unenforceable by law: covenants excluding owners by race or other protected class are void under the Fair Housing Act; federal law overrides restrictions on satellite dishes and, for many communities, on flying the United States flag and installing solar panels; and a growing number of states limit restrictions on rentals, accessory dwellings, drought-tolerant landscaping and electric-vehicle charging. Amending the declaration requires the supermajority of owners it specifies, and a change adopted without it is void.

Where this comes from

Common-interest communities are governed by each state's statute - the Uniform Common Interest Ownership Act, the Uniform Condominium Act and the Uniform Planned Community Act as adopted, or free-standing codes such as California's Davis-Stirling Act (Civil Code §§ 4000-6150), Florida Statutes chs. 718 and 720 and Texas Property Code chs. 82 and 209 - together with the recorded declaration itself; the general law of covenants is restated in Restatement (Third) of Property: Servitudes. The lien priority and the foreclosure protections are set by each state's statute. Federal overrides are the Fair Housing Act, 42 U.S.C. § 3604; the FCC over-the-air reception devices rule, 47 C.F.R. § 1.4000; and the Freedom to Display the American Flag Act of 2005, 4 U.S.C. § 5 note. Delinquency thresholds and notice periods are each state's own and are not stated here.

When people hire a lawyer for this

An owner facing an assessment lien should treat it as a foreclosure notice, because that is what it becomes, and should get advice before the association's attorney's fees exceed the original debt - the fees are usually recoverable and grow with every letter. An owner in a dispute with the board over an architectural refusal, a fine or a rental restriction should read the declaration and the state statute before the first hearing, since the association's power comes only from those two sources and a restriction that is not in the declaration, or that the state has overridden, cannot be enforced however long it has been on the books.

Find a lawyer for this in your state

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Part of the LawyerLand plain-English legal glossary. Definitions are written from primary sources - statutes and court rules - and each entry states the authority it rests on, or says plainly when the doctrine is state law with no national rule.

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