What can and can’t I do in my homeowners association?

Homeowners associations have become widespread; so widespread that some individuals may not even realize they live in such a community.

Homeowners association in northern Michigan. Photo credit: Brad Neumann | Michigan State University Extension

Homeowners association in northern Michigan. Photo credit: Brad Neumann | Michigan State University Extension

In 1970, just one percent of the U.S. population lived in a residential development that was tied to a homeowners association. By 2014, that number had grown to over 20 percent.

Homeowners associations are generally referred to as community associations or common interest communities – terms that include residential subdivisions and condominium developments. The common thread across terms is a residential development that includes deed restrictions on individual lots or units that limit the use of property and often create shared rights to communal facilities and services. Purchasers of property in such communities knowingly accept the restrictions and are contractually bound to them. Such restrictions run with the land and are binding on all subsequent purchasers.

The first homeowners association in the U.S. was Gramercy Park in Manhattan developed in 1831. At that time, zoning had not yet emerged and would not be upheld by the U.S. Supreme Court as a valid exercise of local government police power until 1926 with the seminal case Village of Euclid vs. Ambler Reality Co. In the absence of zoning, residential developers began placing covenants and deed restrictions on property in order to create certainty of use and keep out some of the industrial ills characteristic of city living at the time.

In 2014, 59 percent of all new single-family housing built was tied to a homeowners association. Many developers like this form of residential development because it allows them to create more uniform communities. Many homeowners like this form of housing because – as the name suggests – they expect to be living with neighbors that share similar preferences in housing type, design, and price. Also, the vast majority of these residents believe that associations help protect and enhance property values. At the same time, homeowners associations have been criticized as being exclusive and exacerbating social and economic segregation (Reich 1991).

Homeowners associations consist of individually owned residential units with shared facilities and common areas like private roads, parks, pools and clubhouse type buildings. The residential structures may be single-family homes in planned neighborhoods, clusters of townhomes or flats under condominium ownership, or a combination of different types of residential dwellings.

Typically, an association with an elected board of directors collects dues or assessments from property owners to pay for the operation of the association and the maintenance of its commonly held property and facilities, which may include building and street maintenance, snowplowing, trash collection and more. In addition to association fees, residents also pay municipal taxes at the same rate as residences outside the association.

When such communities are developed, legal instruments called covenants are included in the original deeds of lots and units within the development. This amounts to the creation of deed restrictions that might require larger lots or setbacks than required by zoning and the use of certain building layouts, architectural styles, and construction materials. There might also be restrictions on outside decorations, display of flags, accessory structures, installation of solar panels and other equipment, landscaping, noise, parking, and in some cases political signs. All of these constraints are contractual in nature and enforced by the governing association, the developer, or other owners within the territory of the association.

In municipalities with zoning, the applicable zoning regulations still apply, but are often less restrictive than the deed restrictions. Also, local government officials have the ability to enforce zoning, but have no legal basis to alter or enforce the deed restrictions. With zoning also in place, however, it is possible for a zoning permit to be issued for an activity that would run afoul to a deed restriction.

It may not be entirely clear at first to a home buyer whether they are considering a home that is subject to deed restrictions imposed by an association. In Michigan for instance, the end product of using the subdivision process (as detailed in the Land Division Act) to divide ownership interests in land can look virtually identical to the end product of using the site-condominium process (as allowed in the Condominium Act) to do the same.

For more information on the public policy aspects of homeowners associations, see the Lincoln Institute of Land Policy publication Private Regimes in the Public Sphere. If you have questions about your homeowners association rules, talk to your association board or take a look at the deed or chain of title to your property. Questions about land use regulations in general can be directed to a Michigan State University Extension land use educator.

 

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