HOA Hell
HOA Hell: California Homeowners' Definitive Guide to Beating Bad HOAs (Michael Kushner, Esq.)
An intro to a new book about bad HOAs based on selected excepts:
For most people, buying a new home is an achievement, and rightly so. But since more and more residential communities are governed by HOAs in California, it’s important for homeowners living in those associations to understand that in addition to buying a new home, they’re also buying into a private form of government—a legal structure with rules, penalties, and enforcement powers that often mimic the powers of local government. These private governments are known as homeowners associations, or HOAs, and they govern millions of properties in California. The Davis-Stirling Act is the primary body of law that governs HOAs in California. It gives boards significant authority to carry out their duties, the most important of which are to maintain the common areas, enforce the governing documents, and collect assessments in an amount sufficient to operate the HOA in compliance with applicable laws. But it also imposes strict requirements on how that power must be exercised, and homeowners who understand those requirements are in a much better position to push back when boards overreach. This chapter sets the foundation for everything that follows. It explains what HOAs are, how they’re structured, what legal documents control them, their powers and limitations, and what obligations they owe to homeowners...
The Biggest Mistake Most Homeowners Make
If you live in a community governed by a[n] [HOA] in California, you probably signed more than 100 pages of legally binding documents when you bought your home. You likely received a package containing some CC&Rs, a set of HOA rules, bylaws, architectural guidelines, and multiple disclosure forms. And you probably didn’t read most of them. That’s not your fault. You were never expected to. Documents like these are treated like boilerplate. Buyers don’t review the fine print, and no one expects them to—not the realtors, not the lenders, not even the boards themselves. The documents get signed, scanned, and forgotten. But the minute escrow closes, everything changes. You’re now legally subject to all of those governing documents (e.g., the CC&Rs, Articles, Bylaws, Rules, etc.). Suddenly, the HOA starts citing those same documents as justification for whatever the board wants to do, whether it’s denying a request, threatening a hearing, or sending an aggressive letter from their lawyer. And because most homeowners never read those documents, and have no way of knowing what their rights are under California law, they assume that the board must be right… that whatever the HOA says is enforceable. That the board gets the final word. That’s the biggest mistake homeowners make. Because the truth is your HOA only has the powers California law and your governing documents explicitly give it. Nothing more. And if you don’t know what those limitations are, your board will never tell you.
Where Your HOA’s Power Comes From
Most homeowners never think about how their HOA was created. They just assume that it “came with the house.” But HOAs aren’t natural. They’re manufactured constructs that serve a particular purpose. And the people who created them weren’t public officials or consumer advocates. They were land developers.
Most of those HOAs in California are set up as nonprofit mutual benefit corporations. Some are just unincorporated associations. But regardless of how they’re structured, once they’re up and running, they all derive their power from two places: (1) The governing documents—like CC&Rs, Bylaws, and Rules—that act like a contract between the homeowners and the association and (2) California’s Davis-Stirling Act—a set of laws that spell out what HOA boards can and can’t legally do. When a board acts within those boundaries, its power is real. But when it steps outside them, and far too many do, it creates real problems. The problem is that most homeowners don’t know where the lines are, and their boards are counting on that. That’s why it’s so important to understand exactly which documents and laws control your HOA and which ones take priority when there’s a conflict.
Understanding the Hierarchy of Governing Documents
Every HOA is controlled by a variety of documents, but those documents don’t all carry the same weight. There is a strict legal hierarchy, or order, to those documents that establishes which one controls if there’s ever a direct conflict between them. Knowing that order puts you in a much stronger position when the board tries to enforce something questionable. Here’s the order to your HOA’s governing documents:
- CC&Rs (Covenants, Conditions, and Restrictions) - The most important and senior of the governing documents for your community. CC&Rs are recorded with the county and binding on all current and future owners, and they supersede all other governing documents.
- Articles of Incorporation - The HOA’s formation document, filed with the California Secretary of State. In the vast majority of HOAs, the Articles of Incorporation will have little, if any, bearing on any issues related to homeowner rights or powers.
- Bylaws - The operating manual for how your HOA is run, including meetings, elections, and the basic powers of the board.
- Operating Rules, Regulations, and Architectural Guidelines - The lowest tier of authority. These can only fill-in the details without contradicting any of the superior documents listed above. If they do, they’re unenforceable.
Why does all this matter? Because if the board enforces something that conflicts with a higher-ranking authority in this list, the higher one controls, no matter how confident the board sounds. That’s why it’s worth reading your CC&Rs from start to finish at least once. They are the foundation for almost every dispute you’ll ever have with your HOA, and understanding them makes it much harder for the board to overreach.
What the Davis-Stirling Act Actually Does
If you live in a California HOA, your rights and your board’s obligations are governed by something called the Davis-Stirling Common Interest Development Act. It’s a set of state laws that apply to almost every HOA in California, regardless of size, age, or structure. Many homeowners have never heard of the Davis-Stirling Act, and those who have are often led to believe it’s just a vague set of procedural rules. In reality, it’s a powerful legal framework that gives you enforceable rights and imposes strict limits on what your board can do. The Davis-Stirling Act isn’t optional. It’s the legal framework that controls nearly everything your HOA does: board meetings, elections, document access, architectural review, rules and regulations, funding, maintenance obligations, member discipline, and more. And if your board violates it, they’ve broken the law.
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