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An extremely common issue faced by Homeowners’ Associations (“HOAs”) and their members, the individuals owning property within the area governed by the HOA, is what oversight the HOA has over tenants within the HOA. The issue arises when an individual owner of a unit within an HOA chooses to rent their unit to a tenant. The tenant as the resident of the unit within the HOA then engages in conduct that violates the HOAs’ governing documents, being either the Covenants, Conditions & Restrictions (“CC&Rs”) or the Rules and Regulations, of the HOA. As an example, the tenant could park several unregistered vehicles on the street or in the driveway in an HOA that has CC&Rs prohibiting permanent parking of unregistered vehicles. As another example, the tenant might walk their dogs around the neighborhood without a leash in an HOA that has Rules and Regulations requiring all dogs to be kept on a leash. In these instances the HOA, the property owner/landlord and the tenant all want to know what, if any, oversight and enforcement power the HOA has with regard to the tenant.
The answer is surprisingly straightforward. The HOA has nothing more than indirect oversight and enforcement power with regard to the tenant. Simply put, the HOA has the authority to enforce its governing documents against its members, the landlord who actually owns the real property. The HOA has no ability to enforce its governing documents with regard to third parties, such as tenants. Thus, when a tenant fails to abide by the HOAs’ governing documents, the HOA has the authority to take action against the landlord. The action which can be taken against the landlord varies depending upon the type of violation and the provisions of the governing documents but may include notices of the violations, fines and, if the violation involves nonpayment of assessments, potentially imposing a lien upon the real property. Nonetheless, there is no direct action which the HOA can take with regard to the tenant.
The tenant is overseen by the landlord and the terms of the Lease between the landlord and the tenant. Accordingly, depending upon the terms of the Lease, the Landlord could potentially pass through fines and assessments from the HOA to the tenant or evict the tenant for failing to comply with the terms of the governing documents if they are incorporated into the Lease. Nonetheless, if the Lease does not include terms addressing the HOA and compliance with the governing documents, the Landlord may not be able to enforce the terms of the governing documents upon the tenant.
As you can see, an HOA’s authority is limited to oversight and enforcement of its members, the owners of the real property. Oversight and enforcement of a third party, like a tenant, thus falls to the individual members who are acting as landlord. Accordingly, a hierarchy is formed whereby the HOA can oversee and enforce the governing documents upon its members, the landlord, and the landlord can oversee and enforce the terms of the Lease, which hopefully incorporate the governing documents, upon the tenant. Thus, in no circumstances can an HOA evict a tenant.
Posted on February 26, 2015 by J. Mahe
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