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Maverick, Lawyer
Category: Real Estate Law
Satisfied Customers: 6422
Experience:  20 years professional experience
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I live in a single family home within a home owners association.

Customer Question

I live in a single family home within a home owners association. We have a $1,000 square foot in-law apartment attached to our home with a separate entrance. We asked our association for permission to rent this part of our home. The rules state that 100% of the members must agree to allow us to rent. One person has said no so therefore we are unable to rent. We are struggling to sell our home and due to the economy have been unable to sell such a large home (4,100 sq. ft. with an in-law apartment. Other members violate rules (above ground pools, sheds, etc.) We can't afford a law suite. Do we have any other options. The association is 12 years old with original rules. We are willing to allow stipulations to the rental provision such as no pets or only one renter, etc.
Submitted: 6 years ago.
Category: Real Estate Law
Expert:  Maverick replied 6 years ago.

Welcome to Just Answer! My name isXXXXX very much enjoy what I do and I hope that you will benefit from this information.


The HOA cannot engage in selective enforcement of its rules. So, you can ask them to make sure all others comply, but if they don't your only resort is a lawsuit. The reverse is also true, you can rent it out and they can sue to get an order to stop you from renting at which time you can try to defend on the grounds of selective enforcement. Either way, however, you will be dealing with court costs and legal fees.


Unfortunately, if you do not have the money to endure a legal battle, you rights in this country are limited. The system is designed to preserve the status quo and protect the wealthy.


If the one person who is withholding consent is doing so unreasonably, then you may be able to require the court to read that into the HOA laws, but this is a long shot.


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Customer: replied 6 years ago.
Thank you Maverick. I will accept my answer but I have a related question. Can I petition the members of the association to change the rule? What if I get all but the 1 or 2 people to agree to allow me to rent the apartment? Can majority rule in having the rules changed or must they stay the same because they were that way when we purchased the home. Also, what if I rent the apartment under the table and tell the members the renter is just a friend I'm helping out? What could they do?
Expert:  Maverick replied 6 years ago.

If the bylaws of the association or the CC&Rs require a majority vote or 2/3rds vote instead of unanimous vote, then yes, you could try to get them amended. At that point, the rule regarding how many votes are needed to allow a person to rent could be changed to anything that the majority or 2/3rd of the members agree to.


If there is no restriction in allowing a friend or an extended family member to stay there, then there is not much they could do unless they can prove that you are renting. In other words the tenant will have to agree to pay you cash and he will have to make sure that he is in on the game. The problem is that you will not have any control over the tenant if you tell him what's going on. You will not be able to have a lease agreement in writing either. This is a risky route at best especially now that they know you were trying to rent it out. They could call the tenant or you to testify under oath about the relationship.




Maverick and other Real Estate Law Specialists are ready to help you
Customer: replied 6 years ago.
How can I go about having the rules changed so that 75% or 90% of teh members can vote on a rule. It seems totally unfair that 100% of the members have to agree to each rule. The one person that is stating I can't rent is just being stubborn because of a past disagreement they had with a friend of mine. It is just ridiculous that we are in this position due to one vindictive person.
Expert:  Maverick replied 6 years ago.

You need to get a hold of the existing bylaws and CC&Rs to see what they say about how to amend the bylaws and CC&Rs. That is the process that needs to be followed. Assuming that they do not require unanimous vote, then you can have a HOA meeting to have the members vote on the issue and see if they are agreeable to adopt a change.