Title Tip: Who is Responsible For Fixing an HOA Violation, The Buyer or The Seller?
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A recent home buyer posed a question about an HOA violation concerning their new home. It seems the fence installed by the previous homeowner a couple of years ago doesn’t conform to the HOA rules. Now the HOA is requiring the new owner to bring the fence into compliance with the HOA regulations. Who is responsible for correcting a violation of an HOA restriction?
What is fair?
When a property is part of a mandatory homeowners association, a violation of the HOA rules, regulations, or restrictions does not usually hinder a sale. And the seller is not automatically obligated to resolve the violation.
After closing, the new buyer may get a letter from the HOA stating that they are out of compliance and must fix the issue. That kind of surprise shouldn’t happen, but certainly does sometimes.
Know your rights.
When there is a mandatory owners association (HOA), the standard TREC contract has a provision for providing HOA documents and for the buyer to object to any issues. The buyer is entitled to receive copies of all documents that govern the maintenance or operation of a property including restrictions, bylaws, rules and regulations, and a resale certificate.
HOA documents are essentially restrictions to the owner’s use of their property. These can include a variety of matters: how many and what kind of pets are allowed, signs or flags being displayed, parking of vehicles, guests allowed, cable or internet services available, front door color, fence design, roof materials, etc. What is fine with one new homeowner may be completely unacceptable to another.
The Resale Certificate discloses the amount and frequency of dues and assessments, any lawsuits they are involved with, and other information. A current resale certificate is required from the HOA to state if they are aware of any current violations to their rules and restrictions.
The HOA disclosure on the resale certificate gives the buyer notice of any violations prior to closing.
As stated in the contract, after receiving the HOA documents and resale certificate, the buyer has three days to terminate the contract if they don’t like what the resale certificate or other documents reveal.
Or the buyer could address any issues with the seller within that three-day period and come to an agreement. The buyer and seller could amend the contract to require the seller to fix a violation.
In the case of our new homeowner, they did not take notice of the violation disclosed by the HOA or the fence restrictions. And they did not object to the HOA documents in the three-day period. The seller claimed to have no previous HOA notice of the violation and therefore had no obligation to disclose an unknown issue.
Know your responsibilities.
When it comes to HOA documents, the buyer must be proactive. It is the buyer’s responsibility to review the HOA rules, restrictions, requirements, and resale certificate prior to purchase. The three-day period for objections is important. HOA documents can total more than 100 pages. That’s a lot of reading to do in less than three days.
If the HOA has a website, they are required by law to post their restrictions on their site. If you’re considering the purchase of a property with a mandatory owners association, why not go to their website and review the rules, regulations and restrictions prior to executing a contract?
The buyer has a duty to ask questions and resolve any HOA item they have an issue with. This should happen as soon as they receive HOA documents. The three-day period is their opportunity to request that the seller fix any violations. If they fail to do so, then along with buying the property, they are buying the problem that comes with it.
A buyer of a property with a mandatory HOA is obligated to pay assessments and to follow the restrictive covenants governing the use, maintenance, and occupancy of the property and community. They need to take the time to understand their HOA commitment.
Buyers have the right and responsibility to make an informed decision on their purchase.
The opinions expressed are of the individual author for informational purposes only and not for legal advice. Contact an attorney for any particular issue or problem.
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Do my husband and I have any rights as the third homeowners in the following situation? Recently the HOA told us to remove a rock wall at the front of the driveway entrance because it does not comply with the regulations. (Walls along the front of the properties are not allowed, and the HOA could not find any documents of previous approval for building the walls.) A copy of the landscape design which the the HOA has on file, shows the walls were in existence in 2003 which was within four months of when the first owners purchased the property. The walls were built over 17 years ago. Our homeowners Title and Disclosure Statements from the seller (second owners) was free and clear of any violations. Wouldn’t the HOA had the responsibility to deal with the non-complying rock wall back in 2003 with the first owners?
Hello, I have a similar situation, did you get any further information on your issue?
No, I have not been able to resolve the situation. Very frustrating because the wall is at the front along the driveway so how could it not be seen by the HOA community site inspector!? Wish I had an answer!
You’re in a sticky situation. Yes, the HOA should have addressed the non-complying rock wall back in 2003. However, just because they didn’t enforce the violation then doesn’t mean they can’t enforce it now. It sounds like something has motivated the HOA to start enforcing violations.
Have you read the HOA documents to confirm this wall is not allowed? I don’t know how high it is or if it serves as a retaining wall.
In my opinion, you have a couple of options.
You could request a variance from the HOA to allow the wall to remain, citing that it has been there so long already and poses no hazard, etc.
Or you could consult a real estate attorney for their advice.
Hi question here- I’m in the process of closing on property that is under an HOA. The property I’m purchasing has a fence that is a dark reddish color and a portion on the fence is missing. The HOA docs says that to replace a fence or portion, it needs to be of the same color and material. And must be property maintained and in good repair. Do I have leeway to ask the seller to cover this costs?
I purchased a home a year ago and no violations were noted. Now HOA has an issue with a black privacy mesh over my metal fence which original owner installed. Meshing is not allowed. Shouldn’t this be grandfathered in since they didn’t cite previously?
Hi,
Were you able to get this issue resolved. I am currently in such a situation
HOAs are powerful in Texas and the HOA has a right to enforce violations of their rules and regulations. Even if the violation was by a previous owner.
You could request a variance from the HOA to allow the violation to remain, citing that it has been there so long already and poses no hazard, is not unsightly, etc. Or you could consult a real estate attorney for their advice.
Understanding the thee day disclosure timeline for HOAs. What if the disclosures were sent, but one violation was disclosed after the timeline has expired. Here are the facts. A sale is pending. The HOA docs were sent. After the 3 day timeline expired, it was disclosed that the seller painted the house in a color that is in volation of the HOA rule. This was not disclosed until after the timeline. Does the 3 day time start or is the buyer stuck with the violation?
What if you signed closing documents, the HOA made changes 56 days later, you were not notified. Presumed the HOA and Builder confirmed compliance. The 3 yrs later recieved a violation for the change? PLUS if you recive violation letters (valid/invalid) do what would be considered a cure prior to the cure date? send in the proof of cure, recieve zero response. Then get violation letter # 2? # 3 months upon months later? Complain all the way up to the HOA Board DIR, and told its too expensive to send out “cure letters” ? Violation letters #1-#3 are legal docs , and homeowners cure letters arent? Leaving Homeowners vulnerable to unscrupulous HOAs that may keep them in perpetual violation status. & same HOA ingnoring requests for a hearing 4 times. & no Texas Department that governs TEXAS RESIDENTIAL PROPERTY OWNERS PROTECTION ACT