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Roger, Lawyer
Category: Real Estate Law
Satisfied Customers: 30897
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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I own a Mississippi house and am up to date with my HOA ...

Customer Question

I own a Mississippi house and am up to date with my HOA dues. Recently the HOA passed a rule that says they will not issue pool/clubhouse cards to renters any more and that the owner must sign a form that they will not let their renter use the pool if a card is issued to them. I just rented out my home and now told my renters they can''t use the pool, steps away from their new home, and they are justifiably upset. Something stinks here since the pool is about the only thing my dues pay for and now my house investment is not worth as much without this amenity.
Submitted: 8 years ago.
Category: Real Estate Law
Expert:  Roger replied 8 years ago.

Hi - I practice in Mississippi.

The HOA is apparently doing this to prevent the homes in this association from being rental properties.

In general terms, HOA's in Mississippi can do things like this so long as its intent is for the betterment of the community.

The only real thing you could do is file a grievance with the HOA asking that it reconsider the ruling, and maybe develope an alternate rule (instead of complete exclusion, maybe they could charge the renters an additional fee for the pool access, etc.).

If the HOA is unwilling to cooperate, you could file suit in chancery court and ask for an injunction to stay off the enforcement of the rule until you can investigate whether or not it is a legal provision. You would need to speak to an attorney if you're considering this.

My gut feeling is that the HOA can probably do this with out any recourse.

Roger and 5 other Real Estate Law Specialists are ready to help you
Customer: replied 8 years ago.
I think I will refuse to pay the HOA dues because they are denying my property use of the pool, and then they can meet me in court if they put a lien on the property. Bad idea?
Expert:  Roger replied 8 years ago.

If you're wanting to bring the matter to a head, that's one way to do it!

I understand your position, and if you can find other HOA members that feel this way too, it may be that you can draft and pass around a referendum to change the rule.

Customer: replied 8 years ago.
Is there any merit for it being a case of discrimination? Your first answer seems to indicate I would lose the case in court no matter what. It implies the HOA is saying that renters are not as good as owners, though we took over the run down property, made it nice and rented to professional people. They are denying our rights to our investment since the pool is an amenity that adds to the attraction of the property. Two grievances here against them. But could discrimination be used? Could it be enough to retain you to draft up a letter for suit, and hoping they don't wish to defend it? Yeah, call their bluff. And third, it is for homeowners and their guests. So our renters are our guests...
Expert:  Roger replied 8 years ago.

Well, HOA's are considered to be like private clubs in the eyes of the law. Thus, discrimination is not applicalble.

There are other HOA's that only allow 55 and older people to buy houses, and similar restrictions that would be considered discriminatory outside of a private HOA.

Roger and 5 other Real Estate Law Specialists are ready to help you
Customer: replied 8 years ago.
Thank you for your responses, and I won't ask anymore!

BTW, I know it's not quite the same, but the HOA discrimination issue does arise with HUD, and this situation is also where "equal access to the swimming pool to all residents" is violated.
-- On Realty Times,
HUD adopts regulations to clarify the prohibited acts of discrimination in housing. These regulations include a prohibition against rules that have the effect of restricting a resident's use of the recreational facilities associated with a dwelling based on their familial status. HUD and various cases have found that the Act clearly applies to HOA swimming pools.

If a court finds that an HOA has adopted rules that violate the Act, it will be responsible for the costs of defending against any such claims and may be responsible for paying monetary damages (actual and punitive), plus the attorneys' fees of the complaining resident.

Therefore, it is in the HOA's best interests to have legal counsel review its pool rules to determine whether they violate the Act. Once it has been discovered that a rule potentially violates the act, that rule must be abandoned or modified. It is not sufficient to take the issue under advisement or investigation.

A quick glance at most HOA rules regarding swimming pools will likely uncover at least one rule prohibited by the Act. These include certain rules based on age, restrictions against children wearing diapers in the pool, adult-only pools and adult-only hours or swim times. These rules are discriminatory under the Act as they appear to discriminate against families with children by not providing equal access to the swimming pool to all residents. Over the past decade, a number of court decisions have applied the provisions of the Act to HOA pool rules and regulations. The cases have held that restrictions on children's use of a swimming pool, where those same restrictions do not apply to other adult residents, are prima facie cases of discrimination under the Act.
Expert:  Roger replied 8 years ago.

You can certainly challenge the rule as unconstitutional, but unless it is a race issue, the challenges are largely unsuccessful. This is not to say that you can't win, but it will be tough.

Good Luck.

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