A North Carolina homeowner association (“HOA”) is an organization (most are non-profit corporations) that oversees the management of, and makes and enforces rules applicable to home ownership in, a planned residential community. Purchasers of homes in a North Carolina HOA community automatically become “members” of the HOA; there is no “opting out”. And as members of the HOA, they are contractually obligated to comply with its rules.
There are more than 14,300 HOA communities in North Carolina containing a total of more than a million homes. Whether you already live in an HOA community or are considering buying a home located in one, it is important that you know where to find its rules, how they may cost you and restrict your use and enjoyment of the property and how they may be enforced by the HOA.
CC&R – The “Covenants”
A North Carolina HOA’s rules applicable to its members’ rights and responsibilities, often referred to simply as the HOA’s covenants, are set forth in a legal document called its Declaration of Covenants, Conditions and Restrictions (“CC&R”). The CC&R is filed in the recorder’s office(s) of the county(ies) in which the HOA is located as a real estate record that “runs with the land” that is part of the community. A copy of the current CC&R is also provided to each HOA homeowner at or before the closing on their purchase.
Some HOA covenants may actually be perks for some who live in an HOA community. They include provisions whereby the HOA agrees to provide services such as property maintenance and general upkeep, landscaping and/or snow removal. Of course, the HOA’s costs for such services are passed through to the homeowners, one way or another.
Most often, however, covenants work the other way; they impose obligations and restrictions on the homeowners. While every HOA’s covenants are different, they typically include rules that address most or all of the following:
- Dues and Assessments – Regular periodic dues are paid by members for the HOA’s operating costs and expenses, items like landscaping, maintenance, upkeep and insurance of common areas and shared facilities, and maintaining a reserve fund for emergencies; in addition, an HOA may require payment of special assessments by its members, one-time fees to cover unexpected expenses,
- Home Insurance – Requirements that members carry certain types and amounts of home insurance,
- Home Appearance/Maintenance – Descriptions of how homes must look (to maintain consistency in the community); requirements for prior HOA approval of exterior modifications; requirements that broken mailboxes, windows, garage doors, etc. be fixed or that roof damage be repaired, within a certain amount of time,
- Landscaping/Lawn Care – Issues such as the types of plants permitted, height and location of trees and how often grass must be mowed,
- Occupancy Limits – How many people can reside in an HOA home at any time,
- Vehicles – Prohibiting keeping certain kinds of vehicles, such as RV’s and boats, in driveways and/or curbside,
- Parking – Banning or limiting curbside parking (where the HOA has its own system of roads) and/or restricting visitor parking,
- Pets – Prohibiting pets or restricting the types, size and/or number of pets that are kept by residents, and
- Trash – When trash cans and recycling bins can be put on the curb and must be brought inside.
Enforcement of Covenants
In addition to establishing the rules that apply to homeowners, the CC&R typically authorizes the HOA’s directors to monitor and enforce compliance with its covenants. Provided that its CC&R is properly recorded and a covenant therein is reasonable and consistently enforced and does not conflict with any federal or state laws, there are different means by which an HOA can enforce that covenant.
In North Carolina, an HOA may impose a reasonable fine on a homeowner for violating a covenant. Before levying a fine, It must first give the homeowner written notice of the violation and an opportunity to be heard. If the fine is imposed, it cannot exceed $100 per violation. If any fine remains unpaid for more than 5 days, the HOA may impose an additional fine of up to $100 per day.
Another course of action that an HOA can take, after giving a violating homeowner notice and a right to be heard, is to suspend or revoke certain of the homeowner’s rights and privileges such as HOA services and access to amenities like pools and clubhouses. It cannot, however, restrict or prohibit the homeowner’s access to his or her home.
A North Carolina HOA can also charge a homeowner for late payments of dues or special assessments after 30 days. Such charges cannot exceed the greater of $20 per month or 10% of the amount unpaid.
Finally, under North Carolina law, an HOA can place a lien on the homeowner’s property for failure to pay dues, assessments or fines and can foreclose on the lien if the homeowner continues not to pay.
If you need legal advice or assistance related to your current (or any prospective) HOA’s covenants or any other real estate law issue, you can call us at Kelly & West and arrange for a free consultation.
