Ask a real estate pro: Can HOA fine owner for driveway that isn’t pavers or cement?

Q: My daughter purchased a home in August 2020. The home has an asphalt driveway. She recently received a notice from the HOA that all driveways must be pavers or cement. If not completed by a specific date, they will start fining her. She is a single mom and works as a teacher; such an expense would be a hardship. Would she be tenured under the rules that were in place when she purchased the home? — Arthur

A: The relationship between homeowner associations and their members is based on the underlying community documents. These formative documents are simply contracts that outline the arrangement between the various members of the community. Of course, statutory law limits what these community agreements are allowed to control. Still, the association members are allowed a wide latitude in how they agree to run their community.

Homeowner association rules only control people who have agreed to them by purchasing a property within the association. When your daughter purchased her home, she agreed to live with and comply with the agreements that govern her community. This arrangement works because if someone does not like the rules in a particular community, they do not have to purchase a home there.

Most community agreements can be amended by a community-wide vote, and your daughter would have agreed to this as well.

That said, there is a big difference between a change made by the board of directors and one made by the community as a whole. Depending on how the community documents are worded, it is likely that such a drastic and expensive change would only be effective if it were passed by changing the community’s formative documents. This would require a vote that could only be decided if a sufficient majority of the homeowners agreed to it.

To answer your question directly, your daughter will need to determine the mechanism for the change. If the board simply did it, it would likely be unenforceable.

However, if a proper vote changed the community’s documents, she would need to replace her driveway.

Board-certified real estate lawyer Gary Singer writes about industry legal matters and the housing market. To ask him a question, email him at gary@garysingerlaw.com, or go to SunSentinel.com/askpro.