Can you refuse to join an HOA?

Homeowners’ associations (HOAs) are more common today than ever, but they’re not for everybody. If you’re interested in a home in an HOA community, you might be able to get out of the HOA requirements — but it will often be very difficult and require a strict understanding of HOA law and your community’s specific bylaws. In many cases, it could be impossible to opt out of an HOA.

Here, we’ll explain what an HOA is and what it does, and then detail the rare ways you can refuse to join a homeowners association or opt out of one without selling your home.

What is an HOA?

An HOA is the governing body of a planned community, composed of the community’s residents. The HOA board takes care of things like property maintenance and landscaping to uphold the community’s quality in exchange for a fee. In this way, an HOA is like a property manager or landlord. 

HOAs also tend to come with a set of rules or conditions for being a part of the community, like limits on paint colors, cars parked in your driveway, and other regulations. In that sense, they’re more like municipal governments. By setting rules for the community, hiring vendors, paving roads, repairing roofs and fences, and handling disputes, HOAs can simplify life for residents or make it a little more complicated. Simply put, there are pros and cons to living in an HOA. 

HOAs range in what they actually do, and it all depends on the regulations drawn up by the land developer or founding HOA members. The agreement buyers sign upon purchase of a home in an HOA community outlines the board’s responsibilities. Some responsibilities may include trash pickup, snow removal, amenity maintenance, and a range of other services. Some HOAs may also cover utility costs as a part of your HOA fee. It all varies by community so always read the agreement closely before deciding to purchase.

The two types of HOAs

No, not all HOAs are mandatory. But the vast majority of them are. Here, we break down the difference between voluntary and mandatory HOAs.

Voluntary HOAs

As the name suggests, membership in voluntary HOAs is optional. In most cases, a group of people in the neighborhood want to improve the community in some way, so they start a voluntary HOA to pool individual resources for the good of everyone.

Because membership is voluntary, these HOAs often have fewer financial resources than mandatory HOAs. As such, they provide fewer services and amenities compared to mandatory HOAs. But while a voluntary HOA fee might get you access to a neighborhood pool or gym, it won’t come with the stricter rules or restrictions associated with many mandatory HOAs.

If you enter into a voluntary HOA, you can leave whenever you want by stopping your payments, although you’ll stop receiving the benefits of the HOA. That means losing access to the HOA’s tennis courts, missing out on landscaping services, or anything else the HOA does for the community.

The most important difference between a voluntary and mandatory HOA, however, is that voluntary ones don’t have the power to issue a lien against your property. If you don’t pay your HOA fees, the worst thing that can happen is you get kicked out of the HOA.

To sum up voluntary HOAs:

• Membership is optional
• Less formal, with a few community members who want to help the neighborhood
• Amenities/services are limited
• Membership is not tied to the property
• Cannot issue liens for non-payment of fees

Mandatory HOAs

When you buy a house in a community governed by a mandatory HOA, you automatically become a dues-owing HOA member. When you become a member, you stay a member for as long as you own the property or until the HOA is dissolved (which is very rare). At your home’s closing, you will have to sign documents agreeing to abide by the HOAs rules and pay any assessments, fees, or fines associated with the HOA or incurred by violating HOA rules. A mandatory HOA can also assess fees against you or even force your home into foreclosure for failure to pay HOA fees.

You might wonder how such a thing can be mandatory when you purchase a home. An HOA can enforce your membership because of its legal formation. To form a mandatory HOA, either a strong majority of current homeowners or a developer create covenant documents called CCRs (covenants, codes, and restrictions) that outline the rules of the HOA and file them with the county land records office. The covenants then become a package deal with the land, making them binding on all future purchases of any homes within the HOA community.

Homeowners or the developer will also submit a plot map, bylaws, and articles of incorporation to organize the internal governance of the association. Once filed, the covenants apply to all of the lots in the development, and purchasing a home within this area legally binds you to the rules and regulations of the HOA.

If you want to purchase a townhouse or a condo in a larger building or community, it will likely come with a set of CCRs. Before purchasing, read the CCRs that come with your house and have a lawyer review them, too. Even if you purchase a home in a community that doesn’t have an HOA, look over any CCRs that come with the purchase because there may be a clause that allows an HOA establishment later. CCRs are often in the deed or in a separate document called the Declaration of Covenants, Conditions, and Restrictions.

So, recapping mandatory HOAs:

• Membership is non-optional
• Comes with mandatory fees
• Automatic membership when you buy your house
• Usually can’t leave until you sell your home
• More extensive amenities/services than voluntary HOAs
• Common in planned communities and condos
• Can issue liens for non-payment of fees

How to opt out of an HOA

While you can always choose not to buy a home in a mandatory HOA, once you’re in, it is very difficult to get out. In many communities, it’s impossible without selling your home.

There are a few instances in which you may be able to opt out of an HOA, however:

• Your HOA has a de-annexation clause
• Your HOA doesn’t enforce its own rules
• Your HOA treats your property differently than other properties in the association
• Your HOA added your house to its membership by mistake
• You weren’t informed about the HOA at purchase
• Your HOA made a technical or legal error in its paperwork
  

None of these conditions guarantees you can opt out of the HOA, but one or more will give you a better chance of doing so. 

Before you get too into the weeds, talk to your neighbors to see if other people also want to opt out. In most cases, it takes 80% of homeowners to abolish an association, so it’s not likely, but it’s worth a shot if your HOA is mismanaged. If that fails, review your CCRs and your state’s laws to understand the procedure for how to dissolve an HOA. 

Finally, if you love your home, don’t want to move but do want to opt out of the mandatory HOA, you need to get a lawyer. State laws regarding residences vary and online information isn’t always reliable. Plus, HOA law is a very specialized area. Not just any real estate attorney will understand the intricacies of HOA law, so it’s important to find one who has experience representing homeowners against HOAs.

While you might be able to opt out of an HOA, you have to consider the cost. It will be an expensive and time-consuming legal battle, it could put you in an awkward position with your neighbors, and there’s no guarantee you’ll win your case.

That said, it’s possible, and here are some examples of what might help your case.

1. The de-annexation clause

A de-annexation clause spells out how members can leave an HOA. If it exists, you’ll find it in your HOA’s CCRs. De-annexation clauses are not common and the chances of getting out of a mandatory HOA even with one are slim. Most de-annexation clauses require a strong majority of HOA members to approve your request for de-annexation which is unlikely for a number of reasons.

First, with you no longer paying fees, everyone else’s fees will go up. Second, if you’re outside the HOA, you could alter your property in a way that negatively impacts property values of the rest of the neighborhood. Third, you may still have to use HOA property, like private roads, to access your personal property. 

But if you can make a good case for why your property shouldn’t be in the HOA — for instance, if it’s older than other HOA properties and requires more maintenance — you might have a chance. Regardless, you better be ready to schmooze other members.

2. The HOA doesn’t do its job

HOAs have a responsibility to enforce the CCRs, hold elections for board directors, and conduct regular meetings with community members. If the HOA isn’t doing those things, you could make an argument that the CCRs are no longer enforceable. That means taking your case before a judge.

Going to court over an HOA battle may take years. The court will have to decide whether the CCRs are still enforceable, a process that will take arguments from both sides and monitor the HOA. Even if the board wasn’t enforcing rules before, once a court battle starts, they may get their act together, making the court less likely to see your side. Still, it’s possible that the court agrees with your take and dissolves the HOA.

3. The HOA treats you unfairly

The HOA’s board of directors has a fiduciary duty to act in the best interests of the community as a whole. If a board member abuses their power to enrich themselves or enact personal vendettas against individual members of the HOA, they’re in violation of the CCRs. That means if the entire community gets a new paint job, a board member can’t skip your house just because he or she doesn’t like you.

Additionally, the HOA cannot discriminate based on:

• Race
• Ethnicity
• Disability
• National origin
• Familial status (including families with children)
• Gender
• Religion
• Sexual orientation
  

If you feel your HOA treats you differently than other members because of a personal issue or any of the above factors, you can take your case to court. Again, you’ll need to hire an attorney and may be in for a long legal battle. Additionally, even if a judge agrees with you, it doesn’t always mean you can leave the HOA. The judge might just award you damages that the HOA has to pay.

Related: 13 unenforceable HOA rules to know

4. Your house should have never been in the HOA

It’s possible that your property should never have been included in the HOA in the first place. Once again, you’ll have to take your case in front of a judge and will need to gain access to the HOA’s records in the country records office. If the court determines that certain characteristics of your property distinguish it from the rest of the HOA, you may be able to leave it.

For example, if your HOA is primarily made up of a gated community but your house lies outside the gates, you may have a good argument to leave the HOA. The HOA might have included your property to increase revenues, but a judge seeing a gated HOA community taking dues from a property outside the gate could feel differently. If you can also show that you aren’t receiving the same services as the other members (like access to the private roads beyond the gate), you stand a better chance of getting out of the HOA.

5. You were never told about the HOA

While it’s hard to leave a mandatory HOA, nobody can force you to join it in the first place. When you buy a house, the CCRs will say if it’s part of an HOA or if it could become part of one in the future. If you weren’t informed about the existing HOA or the potential formation of one, you’ll probably be less than thrilled when an organization starts demanding fees.

Tricking you into joining an HOA is fraud. If you can prove that you were never informed about the HOA, you can convince a judge to let you leave. Before you take it to an expensive legal battle, however, make certain that you weren’t informed. Review all the paperwork you signed with an attorney to make sure you didn’t overlook something. Not realizing what you were signing isn’t going to convince a judge to side with you.

6. The HOA messed up its paperwork

In rare, lucky cases, the HOA just plain messed up. If there is a serious technical or legal error in the CCRs, you might be able to argue they are invalid. Likewise, if your HOA failed to file its paperwork properly, you could get the HOA dissolved.

How would you know? Have an HOA attorney review your CCRs and ask to see the HOAs paperwork in the county records office. In some states, non-profit corporations like HOAs have to re-register with the state after a set number of years or file annual notices. Discovering that they’ve failed to do so might force a judge to dissolve the HOA.

In this scenario, you’re fishing for a technicality so you need a great HOA attorney to prove that the paperwork is faulty.

Can you refuse to join a homeowners’ association? Yes and no. You don’t have to purchase a home in a mandatory HOA community but once you do, it is very difficult to opt out of the HOA. (If you're looking to buy a home, Orchard can help. Browse homes with and without HOAs here.) Unless you can gain enough support in your community to let you leave the HOA voluntarily, you will have to hire an attorney to try to convince a judge that you should be allowed to leave.