Can an HOA add a land use restriction by amending by-laws

by Brian Sinkoff
(White Lake, MI USA)

Visitor Question: We have a complicated HOA, which oversees 13 subdivisions with each subdivision have its own deed restrictions, located in Michigan. Five subdivisions state no trailers are allowed on the property. Seven subdivision deed restrictions do not have that land use restriction.

The HOA now wants to amend the by-laws, not the deed restrictions, to ban trailers from all subdivisions.

Can they do that?

I thought use restrictions were contained in the deed restrictions only, and HOA by-laws were how to run the association, how to enforce the deed restrictions, and how to take care of common property, not to put further use restrictions on the property through by-laws.

Editors Reply: When we read your first three paragraphs, our reaction was the same as yours. Bylaws typically deal with how the association is run and not with substantive matters regarding the subdivision.

However, to answer your question about whether they can impose new land use restrictions, even if it is not a "best practice," we would have to have what your deed restrictions say about the HOA.

If those restrictions give considerable leeway to the association, as many do these days, it is certainly possible that your HOA has the power to make and enforce new rules of many kinds. Unfortunately in most states and under many master deeds, this could include making a new land use limitation.

We will say that we do not observe this to be a widespread practice, but if the underlying master deed, declarations, or deed restrictions give the HOA plenty of authority, it is possible that this would be held to be legal.

Almost always in our experience, at least if an attorney is involved, we have seen these "rules," which could be anything from no flags, no stickers on your mailbox, or maybe no trailer parking, stated as HOA rules rather than an amendment to the bylaws.

Possibly they are doing this because they do not have rule-making authority, but of course all corporations have and indeed are required to have bylaws. (Incidentally, if this is the case, that is really rotten behavior on their part.)

However, we think your time would be better spent fighting the substance of the change rather than getting in an argument with the HOA about where they put their proposed change in the rules.

We were not sure what kind of trailer the HOA is banning. Are you saying this is a mobile home, a tractor-trailer truck, or a trailer such as one you would use to haul your boat, horse, or motorcycle?

If they want to ban trailers, as in mobile homes or manufactured homes, that is a pure land use issue. If they want to ban 18-wheeler parking or boat trailers, that is more of a parking issue. This might make a difference legally.

In conclusion, you need to begin thinking through your arguments about why you think trailers should be allowed in your subdivision. Maybe your subdivision is more rural than some of the others, maybe the configuration of the lots makes it quite possible to screen off any detrimental visual impacts, maybe your lots are larger, maybe your subdivision is older than others and incorporated some pre-existing residents, or maybe your ambiance is more casual.

If possible for you, organize with your neighbors to confront the HOA about this. You will be more effective if you show that a number of others agree with you.

We don't know the details of course, but we wouldn't let the HOA get by with a consistency argument such as all 12 subdivisions should be operating under the same rules. That might make their management task easier, but it is a shortcut that seems like it might be of dubious legality, depending on how the deed restrictions actually read.

If this matter is important enough to you, you will need to consult a Michigan attorney with some expertise in real estate situations.

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