I fought the HOA and the HOA won

By: David Evenhuis, Esq.

A condominium or planned community can feel like a separate country with its own government - the association or HOA. And many residents feel it's more like a dictatorship than democracy. I'm here to tell you that, either way, it's perfectly legal - and it's exactly what they signed up for.

The distinction between condos and planned communities affects certain rights and responsibilities, such as ownership of common areas, but it generally doesn't change the role of the association, which is fairly limited and defined by the bylaws. A unit owner must consent to rules of the community and powers of the association to enforce those rules. But associations are not landlords - and the legal duties of landlords don't apply. A landlord, for example, must keep common areas reasonably safe and well lit, and must evict a tenant known to pose a great danger to the safety of others.

An association has no such duty - even where it owns common areas, as in a planned community - because it exercises no control over the premises. Its duties usually are limited to the care and maintenance of common areas and enforcement of rules. Therefore, whereas residential landlords have been held liable for attacks on tenants in poorly lit on their premises, unit owners have been unsuccessful in bringing such actions against associations.

Pennsylvania law, however, grants associations comprehensive powers to carry out the administration of communities, and to levy fines for rule violations. Residents also have consented to such fines, including provisions for the accrual of interest upon unpaid sums and procedures to expedite liens and foreclosures. It can be a mess for a resident who refuses to pay a fine and attempts to fight it before a hearing board made up of the same individuals who imposed the fine in the first place.

So what's a resident to do when targeted by an association, or discriminated against where rules are not enforced against other residents? This is tough. Discrimination is extremely difficult to prove without clear evidence that you were treated differently than others, because of your membership in a group protected by fair housing laws, such as race, gender, religion or disability. Some discrimination is perfectly legal: favoritism, maliciousness, or even sexual orientation.1 And courts are split on whether fair housing laws apply only to the procurement of housing and related services or whether ongoing services face compliance as well.

Associations also are private organizations, and most constitutional protections don't apply. The Pennsylvania Supreme Court has held that condo associations may restrict free speech in the posting of fliers, since First Amendment rights don't apply to non-government restrictions,2 and that resident owners of a condominium may enact policies favoring one group of owners over another.3 This all makes for a losing battle when fighting an association. But if you're just looking for timely repairs and responsive action, my advice is to build a working relationship with the association and, occasionally, kiss the dictator's boot.

David Evenhuis is an attorney with Caldwell & Kearns, which serves as general counsel to PAR. His practice focuses on litigation, dispute resolution and representing the interests of real estate licensees. He may be reached at [email protected]

[1] Current federal and state laws do not recognize sexual orientation as a protected class. Several Commonwealth municipalities, however, have outlawed certain types of sexual orientation housing discrimination.

[2]  Midlake on Big Boulder Lake, Condominium Ass'n v. Cappuccio, 673 A.2d 340 (1996).

[3]  Lyman v. Boonin, 635 A.2d 1029 (1993).