58

My wife and I have found a vacant lot (this is in Utah, BTW) where we would like to build a house. However, the HOA that the lot belongs to does not allow more than four occupants, regardless of the size of the home. The CCR actually says

(community name) is designed and intended to be for a specific lifestyle. Neither the Units nor the common areas are designed to accommodate large families. Permanent residents of (community name) shall be restricted and limited to families with no more than four person's related by blood, marriage, or adoption.

Does the HOA actually have authority to enforce this? What happens if we build a house (with plenty of room), move in with our two kids, and then have another baby?

ohwilleke
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TallChuck
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    I think, but cannot cite, that the restriction to people "related by blood, marriage, or adoption." has been held unenforceable in other cases (in Michigan) Restrictions on the number of residents in an apartment or house have been upheld, I am sure, but the details will matter. I don't have the sources and details to provide a valid answer at this time. – David Siegel Aug 25 '21 at 17:33
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    Do you really wish to force yourself into an HOA community that will likely shun you? They probably cannot legally enforce the size of your family but there's not much stopping them from making you feel like an outsider. You have a right to have as big of a family as you please and they have a right to simply not like you. The social repercussions will be real. – MonkeyZeus Aug 26 '21 at 13:02
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    @MonkeyZeus more to the point the livability of an HOA community is largely dependent on how reasonable/obnoxious the enforcement is. If you do something to infuriate the local busy bodies they can nitpick you to death with an unending stream of petty violations. – Dan Is Fiddling By Firelight Aug 26 '21 at 13:14
  • @DanIsFiddlingByFirelight Agreed! My comment didn't say that directly but that was certainly one of my implications. – MonkeyZeus Aug 26 '21 at 13:16
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    @DanIsFiddlingByFirelight: What means do they have of actually harming you by that? Is there a good answer on that topic already on the site? – R.. GitHub STOP HELPING ICE Aug 26 '21 at 13:25
  • You can get a copy of HOA rules/bylaws/etc before you buy? I was told those were only available to homeowners and I'd be issued a copy of the rules at closing... – Bardicer Aug 26 '21 at 14:19
  • @R..GitHubSTOPHELPINGICE slapping you with fines for each violation.. $100 or even $10/day will add up fast. Not sure if there's anything on this SE, if there is search is failing as usual. – Dan Is Fiddling By Firelight Aug 26 '21 at 14:24
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    Since this is in Utah, this might be a way to ban LDS families, or conservative families, or immigrant families without "breaking" any laws. I would check the demographics of the community and see if they have a certain type of people they approve of. Given the demographics of the state, I would be surprised if they really care about 5 person families, they're probably trying to regulate some other characteristic that would be illegal to restrict directly. – Andrew Lewis Aug 26 '21 at 14:26
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    @R..GitHubSTOPHELPINGICE although not a case of an HOA acting maliciously, this is an example of how they can generate a huge mess of fines if they want to over something seemingly trivial . https://law.stackexchange.com/questions/33030/hoa-general-rule-violation – Dan Is Fiddling By Firelight Aug 26 '21 at 14:33
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    "shall be restricted and limited to families with no more than four person's related by blood, marriage, or adoption" - so, you can have unlimited tenants (rent-free) not related by blood, marriage, or adoption? – MonkeyZeus Aug 26 '21 at 15:53
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    @MonkeyZeus then you aren't family and aren't allowed to live there at all, I suppose. – user253751 Aug 26 '21 at 16:04
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    @Bardicer - Laws vary from state to state, but in general the seller is required to provide all the HOA-related rules and contracts to prospective buyers. The HOA itself might not be required to give you anything (that could get unmanageable for large communities), it's usually the seller's responsibility. – bta Aug 26 '21 at 22:02
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    "four person's related by blood, marriage, or adoption" Is the apostrophe in the original? – Acccumulation Aug 26 '21 at 23:19
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    @Bardicer I'm pretty good at knowing what judges are going to say. I think a judge would say that the HOA has free speech rights to hide rules from buyers if they really want to, but then, they could not expect to enforce those rules upon the buyer unless they are trivial (e.g. no yellow house paint). I'm 110% sure that's true if it's lawyer-lawyer: "Dear HOA lawyer, our client is contemplating purchasing a home. What HOA rules exist or that might concern our client?" Denial from the HOA lawyer would be fatal to the HOA's case IMO. – Harper - Reinstate Monica Aug 27 '21 at 21:08
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    @Harper-ReinstateMonica I pretty much told them that if they wouldn't give me a copy of the rules to look at before I bought, I was going to consider them to not apply to me unless it was something drastic. I doubt that would fly here in Houston, TX though. But that's why I'm following this question as much as possible. – Bardicer Aug 27 '21 at 21:14
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    DO NOT BUY IN AN HOA! Nothing more horrible than a random committee telling you what you can or can't do with your property. I mean, cities/counties do this as well but its far easier to deal with them and your rights are better protected. – JonathanReez Aug 28 '21 at 00:24
  • @JonathanReez unfortunately that's not an option everywhere. It's probably best to add this particular HOA though. – Kat Aug 28 '21 at 14:35
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    I'm concerned about them not wanting to show the rules. Buying into an HOA gives the current and future HOA committee members power over you. This will attract both those with the best ('best' per their beliefs) interests of the community in mind and those with time on their hands who like having control over others, with pet peeves, urges to protect against 'what if everybody did it' scenarios or 'those people', etc. – Technophile Feb 09 '22 at 16:29

3 Answers3

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As stated, this is not a reasonable restriction and runs afoul of the Fair Housing Act. You cannot discriminate based on family status, with an exemption for "housing for older persons", and the act "does not limit the applicability of reasonable local, state, or federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling" (let's leave aside HOA restrictions for a moment).

The number of occupants can legally be restricted in terms of a reasonable relation to a legitimate interest such as parking availability, safety, noise or securing the property. A restriction based on square footage or number of bedrooms might be reasonable: a blanket rule "no more than 4 people" is not reasonable. This article notes some of the state complication in interpreting "marital status", in terms of "not being married to each other".

user6726
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    So what's your basis for concluding this isn't a reasonable restriction? – Hasse1987 Aug 26 '21 at 01:56
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    @Hasse1987, the restriction doesn't cite any of the recognized reasonable grounds. – Mark Aug 26 '21 at 06:13
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    It even admits to an improper purpose, "designed and intended to be for a specific lifestyle". That's precisely what the FHA was intended to prohibit. That's a flat out "we want people like us, not people different from us". (But, unfortunately, if the HOA decides they don't like you, they can often make your life miserable.) – David Schwartz Aug 26 '21 at 15:42
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    Also note, the rules try to justify themselves by saying that the "units" aren't designed for large families. That makes this a particularly unreasonable restriction, since OP is looking at a vacant lot and can build a house the appropriate size for their family (alleviating what they allege is their real concern). – bta Aug 26 '21 at 21:44
  • @DavidSchwartz The FHA was designed to prohibit discrimination based on race. I don't know of any intent to prohibit discrimination based on "lifestyle" (and given that it was passed in 1968, it's difficult to believe that that was a legislative intent). – Acccumulation Aug 26 '21 at 23:21
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    @Acccumulation I'm not talking about the FHA as it existed when it was passed in 1968. I'm talking about the FHA as it exists now after many amendments, including the FHAA which amended the FHA in 1988 to ensure protection from discrimination in housing on the basis or things like sex and familial status. – David Schwartz Aug 26 '21 at 23:39
  • @Mark So? Who said they have to explicitly enumerate all their motivations? – Hasse1987 Aug 27 '21 at 08:08
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    @user6726 thanks for the answer, I thought as much from other research, but I wanted someone to confirm I wasn't crazy. Of course, we wouldn't buy this property without going over everything with a lawyer first. – TallChuck Aug 27 '21 at 14:16
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    "reasonable restrictions" sounds like it's up for interpretation, possibly in court. – spuck Aug 27 '21 at 22:32
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What happens if we build a house (with plenty of room), move in with our two kids, and then have another baby?

You will start getting spurious violations like:

  • Your grass was not cut Tuesday morning between 9am and 10am
  • Your garbage cans need to be hidden from the street
  • Your child hopped too many scotches on the sidewalk during a low-noise ordinance
  • Your car's exhaust is suddenly too loud
  • Your front window reflects too much light into the eyes of passersby between 2:05pm and 2:36pm
  • How dare you apply rainbow decorations on your child's playroom window during the off-season!
  • You left the Halloween decorations on your child's playroom window past October 31st 11:59:59pm
  • Your grass extends past your lawn by .025cm
  • You did not get your trees pruned by the yearly deadline
  • You did not pick up all of the leaves before the first snowfall
  • Should I keep going?
phoog
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MonkeyZeus
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    If you don't take this answer seriously, then you need to go to ij.org or search reddit or youtube for HOA nightmares. – Michael McFarlane Aug 26 '21 at 17:29
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    @MichaelMcFarlane I appreciate the support. I have zero legal knowledge of the verbiage in question but I figured that answering the practical aspect is as important as the legal aspect. If anyone disagrees then I would assume the only answer needed is a link to the Fair Housing Act's Examples of Familial Status Discrimination – MonkeyZeus Aug 26 '21 at 18:40
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    @MichaelMcFarlane I never thought to check Reddit but Got fined $35 for sidewalk chalk really hits the nail square on the head. – MonkeyZeus Aug 26 '21 at 18:44
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    What the actual F. I just read through some reddit posts. What is even going on with HOAs? Can someone explain to non-US people why anyone sane would ever, under any circumstances, join a HOA? I would rather live in a tent in the woods. – fgysin Aug 27 '21 at 09:25
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    @fgysin Think of an HOA as a motorcycle club. The club does group rides, events, and other social stuff which you like but you are personally against motorcycles. Do you buy a motorcycle to join the club and then sell it as soon as your membership is approved? That would be lunacy. The club cannot force you to own a motorcycle neither inside nor outside of membership but they absolutely reserve the right to decide whether they want you in their club. You join a club because you like all of the rules. An HOA which suggests families of no more than 4 is attractive to a certain demographic. – MonkeyZeus Aug 27 '21 at 11:51
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    @MonkeyZeus I understand that. What I don't understand, I think, is just imply the whole concept of HOAs as a whole. Why would I ever voluntarily agree to give someone the power to fine me for stuff I do on my own property? – fgysin Aug 27 '21 at 12:47
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    @fgysin You're looking at it from the wrong angle. You don't join an HOA because you wish to be controlled; you join because you wish to control your neighbors. If I am a prim and proper person that just wants to work on my landscaping all the time and enjoy not hearing children, not stepping in dog poo, and not hearing the mechanic neighbor's loud noises at 9pm then I would join an HOA. Could I just get a home with lots of land? Sure, but then I miss out on the conveniences of a community living such as nearby amenities and safety via denser population. – MonkeyZeus Aug 27 '21 at 12:53
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    @fgysin If an HOA neighborhood seems desirable before you find out it's an HOA then it's likely because the neighborhood abides by rules that make it look attractive from the outside; AKA, the HOA is working as intended. The grass is always greener on the other side; you just have to remember that shit is a great fertilizer. – MonkeyZeus Aug 27 '21 at 13:10
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    @fgysin In the US, public goods like infrastructure and safety are privatized to such an extent that living outside and HOA, which provides these goods, can be less attractive than putting up with an HOA's arbitrary interferences into your private life. They call it "liberty" nonetheless. – henning Aug 27 '21 at 13:41
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    @fgysin one thing to understand is that HOA membership gets bundled into the sale of the property. You have to sign up to get the land. So you can't just build a house in their area and blow them off. Which means if you want to avoid them your only choice here is to either buy an older home with no HOA or buy a new home in a new development and start your own HOA that you control. It is viscously self reinforcing. – candied_orange Aug 27 '21 at 15:01
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    @candied_orange I don't understand this piece "buy a new home in a new development and start your own HOA". If you buy a new home without an HOA and an HOA pops up then you can abstain from joining it. If you buy a new home in an HOA then I don't think you can declare your own HOA and join it. I guess the only benefit might be that you make your HOA loose and useless but there will be plenty of members that will wish to boot you out of power and get things in shape. – MonkeyZeus Aug 27 '21 at 15:05
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    @MonkeyZeus You can't buy a new home without an HOA when HOA's are popular enough that every developer helps set them up. It's tyranny of the majority on a very local level. – candied_orange Aug 27 '21 at 15:14
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    @candied_orange Good luck setting up your own HOA and making it attractive enough for a developer to choose yours over an established HOA company. Seems like a lot of work for a miniscule and selfish reward that will be short-lived once the residents deem your HOA as incompetent. I guess on the flip-side, if your HOA's primary attraction is inaction then I guess you'd attract a certain demographic just like the unenforceable 4-person family rule from OP. – MonkeyZeus Aug 27 '21 at 15:20
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    And the worst part is: even if you sue them and win, the cost of the lawsuit will be partially covered out of your own HOA dues. – JonathanReez Aug 28 '21 at 00:23
  • @fgysin I live in the USA and my house is in an HOA. It mostly just maintains a private park, but they do technically have one of the petty rules mentioned in this answer, although I've never seen it enforced. Some areas simply do not have many or any homes without HOAs. I very much did not want one but this was as close as I could get. – Kat Aug 28 '21 at 14:43
  • @MonkeyZeus: Are there not ways to get out of the HOA by having a shell company buy the property, then sell it to you without an obligation for you to join the HOA, then letting the HOA sue the shell company? – R.. GitHub STOP HELPING ICE Aug 28 '21 at 22:48
  • @R..GitHubSTOPHELPINGIICE A home in a mandatory HOA neighborhood can only be sold with an HOA attached. So when the shell company sells it back to you then you're still in an HOA. There's no option. If there exists an optional HOA then the buyer has a choice of whether or not to join. Most HOAs do not allow renting so you cannot rent it from your shell company either. Even if you successfully contrived something with a shell company then the IRS would quickly catch wind and I would imagine actual bankruptcy or insolvency proceedings would have to occur. – MonkeyZeus Aug 29 '21 at 05:31
  • @R..GitHubSTOPHELPINGIICE Additionally, companies are not a protected class so it's fair game to discriminate on that basis and not sell to a company. – MonkeyZeus Aug 29 '21 at 05:40
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It would be interesting to address the legality by stating that your wife is 1 of 4 who can reside by marriage, you and your children are blood, so therefore 4 of 4 by blood relation (related by blood to both you or her) and thus, you could theoretically be meeting the rule without meeting the intent. By this thinking it could be conceived that there could be 10 persons living in the household, you would count as 1 of 4 in each of the three restrictions (that is also somehow assuming you can get by on polygamic issues).

Mike
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    The language is "limited to families with no more than four person's related by blood, marriage, or adoption." I do not think that can be taken to mean 4 by blood, and four by marriage. It means four people, each of who must be related to the others by blood, marriage, or adoption. That leaves the question of whether that meaning is allowed by law, which other answers have addressed. – David Siegel Aug 27 '21 at 19:58
  • I concur, in my consideration, the intent is understood. but the letter is what I am questioning. Punctuation is an important thing. a semicolon here would drive the intent home. – Mike Aug 30 '21 at 13:34