Topics on this page:
- Read the Governing Documents
- Maryland Homeowners Association Act and the Maryland Condominium Act
- Initial Demand
- Hearing and Fining
- Injunctive Relief
- Attorneys' Fees and Costs
You live in a homeowners association (“HOA”) or a condominium (“condo”) and you want to build a shed or put up Halloween decorations outside your unit. So, you build that shed or you put up orange lights and a pumpkin on your balcony. The next thing you know, the HOA or condo board has sent you a notice of violation to remove that shed or the decorations immediately. You decide not to heed the notice or you forget about it. Then you get a notice of hearing or a letter threatening a lawsuit. Now you are concerned about the possibility of being fined or even having to pay the other side’s legal fees. Not only that, but you are upset that your neighbors, who are on the board, are the ones threatening you. What are your rights? This article gives a few tips.
Read the Governing Documents
When you buy a home in an HOA or condo, the seller must give you a set of the community’s “governing documents.” These often include:
- A copy of the declaration (other than the plats);
- The bylaws; and,
- The rules or regulations.
You should review the property's governing documents as soon as you get them from the seller. This is very important. The documents will inform you of things like use restrictions, assessments, HOA voting rights, powers of the HOA board, etc. After you get these documents, you have a certain amount of time to cancel the sales contract without a penalty. Once the sale is closed, you can no longer cancel the contract. For example, you may find out by reading the documents that the HOA prohibits above-ground pools, and you planned to install an above-ground pool once you moved in. In that case, you may want to cancel the contract of sale. The governing documents are usually recorded in the county land records or HOA depository where the home is located.
The rules in the declaration are called “covenants.” HOA covenants are established to maintain a certain standard of living within the community and to protect property values. The declaration and bylaws are binding contracts on property owners within the HOA . Violations of the covenants can lead to enforcement actions by the HOA, which may include warnings, fines, or even legal action.
It is important for potential buyers to carefully review and understand the HOA covenants before purchasing property in an HOA community. As you buy a new home, set aside the time to read the documents. It can save you a great deal of time, money, and headache.
Maryland Homeowners Association Act and the Maryland Condominium Act
The Maryland Homeowners Association Act (“HOA Act”) and the Maryland Condominium Act (“Condo Act”) are sets of laws that apply to homeowners associations and condominiums in Maryland. They can be found in the Real Property Article of the Maryland Code. If your set of governing documents are silent about a legal topic or are outmoded, then these laws help fill in the gaps. Some laws will trump the rules in your governing documents for subjects like family day care homes, no-impact home-based businesses, political signs, and distribution of written materials, etc.
Reading the governing documents and the laws in the HOA Act or the Condo Act can help answer your questions.
Read the Law: Md. Code, Real Property §11-101 through 11-143 (Maryland Condominium Act)
Read the Law: Md. Code, Real Property § 11B-101 through 11B-118 (Maryland Homeowners Association Act)
Typically, the first thing you will get in any covenant enforcement will be a letter. This may be called a “notice of violation,” an “initial demand,” an “initial violation notice,” a “cease and desist notice,” or it may just be a friendly reminder. The title of the letter may vary, but it will likely point out the violation, tell you what you need to do to fix it, and how long you have to fix it in order to avoid a penalty. The time limit may vary depending on the type of violation, the governing documents, and law.
The Condominium and Homeowners Association Acts lay out a process for condos and HOA boards to follow to settle disputes when there is a covenant violation. By law, the owner must be given at least 15 days to correct a violation. Your governing documents may refer to Section 11-113 of the Condo Act or section 111.10 of the HOA Act when enforcing covenants.
If you have been cited by the HOA or condo for a violation, read your governing documents again to find out which covenant they say you have violated. Violations of other HOA or condo rules or regulations are also violations, which the HOA or condo can enforce. It is important to confirm that there is an actual basis (a written requirement) for the notice of violation, and to make sure that the board has the power to enforce such a rule. You should also review any written procedures in place for enforcing the covenants in your community. Make sure that your HOA or condo is following them. NOTE: Some HOAs only have the authority to govern violations in common areas and not the lots. Check your governing documents to find out what powers your HOA has to enforce its covenants, and where.
Hearing and Fining
If the problem has not been fixed within the time period specified in the notice of violation the HOA or condo board will send you written notice of your right to request a hearing.
The notice of the right to request a hearing must be sent within 12 months of the notice of violation. The notice will include:
- The nature of the alleged violation,
- The procedures for requesting a hearing at which the alleged violator may produce any statement, evidence, or witnesses,
- The time period for requesting a hearing, and
- The proposed sanction to be imposed.
If you request a hearing within the period of time specified in the notice, the board must provide written notice of the time and place of the hearing. The hearing cannot be scheduled less than 10 days after the request for hearing was submitted.
An HOA may or may not have a written procedure for holding hearings. In order for the HOA to fine you, there must be an express covenant giving the HOA the authority to fine members for violations.
Hearings occur in executive sessions with the HOA or condo board. Other people may also be present, including the community’s management agent and attorney. If you believe that you are not in violation of the governing documents, then the hearing is your chance to dispute the notice of violation. At the hearing, you have the right to present evidence and cross-examine any witnesses.
After any evidence has been presented, the board decides whether or not a violation exists. If the board decides there is a violation, and that the violation has continued even though you got a notice to fix it, the board may fine you. The board generally determines the amount of the fine. Fines are usually collected in the same way as assessments. It may be possible for the HOA or condo to sue you for unpaid fines and to place a lien against your property for unpaid fines. By law, hearings held within a condo may be appealed to in court.
An HOA or condo can ask the circuit court in your county to order you to stop or fix a violation. They do not have to go through the full hearing process before filing a suit in court. But to take you to court, they must act before the legal time limit (called the “statute of limitations”) expires.
The court may order you not to violate the governing documents or may order you to take some action. For example, the court may order you to remove an unapproved structure or alteration from the exterior of your home.
Usually, the court will not award money damages for a covenant violation since the HOA is usually not financially harmed. However, if the HOA or condo can show that your actions cost them money, the court could order you to pay their costs.
Attorneys’ Fees and Costs
Condos: If your condo sues you and a court decides against you, the court may order you to pay the condo board’s attorneys’ fees. The condo must prove to the court that the attorneys’ fees and costs they are asking for are reasonable. The court will decide what fees and costs are reasonable, based on a list of factors
HOAs: An HOA may also be able to ask the court to make you pay their attorneys’ if they win. Again, the fees must be reasonable, and the court decides what is reasonable. However, not all HOA governing documents allow the HOA to make you pay their court costs and attorneys’ fees, even if you lose in court.
Compensation for attorneys’ fees works both ways. The dispute settlement provisions of Maryland law say that the “prevailing party” is entitled to be compensated by the other party. That mean that if you win, you are entitled to ask for those expenses.
Some HOAs and condos even have governing documents that permit the community to assess the violating owner the attorneys’ fees and costs incurred by it to enforce a covenant even if a suit is not filed. This right depends on the language of the governing documents.