Author: Brooks Schott, Law Clerk
Reviewer: Art Macomber, Managing Attorney at Macomber Law, PLLC
Date: September 26, 2017
Recent changes to the Idaho real property statutes in Idaho Code section 55-115 limit a homeowner association[i] board’s ability to use fines to enforce the covenants, conditions, and restrictions of the association. These changes limit a board’s ability to change the association’s rules and in some cases, requires the consent of the individual against whom the rule is being enforced or against whom fees are being assessed.
No fine may be imposed for a violation of the covenants and restrictions pursuant to the rules or regulations of the homeowner’s association unless the authority to impose a fine is clearly set forth in the HOA’s covenants and restrictions.[ii] Furthermore, a majority vote by the board is required prior to imposing a fine on a member for a violation of a covenant or restriction that is in the rules and regulations of the homeowner’s association.[iii] Written notice by personal service or certified mail of the meeting during which such vote is to be taken must be made to the member at least thirty (30) days prior to the meeting.[iv]
In the event the member begins resolving the violation prior to the meeting, no fine may be imposed if the member continues to address the violation in good faith until fully resolved.[v] No portion of any fine may be used to increase the remuneration of any board member or agent of the board.[vi] No part of the new Code section affects any statute, rule, covenant, bylaw, provision or clause that may allow for the recovery of attorney’s fees.[vii]
Homeowners’ associations are also prohibited from adding, amending, or enforcing their CC&Rs in such a way that would limit or prohibit the rental, for any amount of time, of any property, land, or structure within the homeowners’ association, unless expressly agreed to in writing at the time of such addition or amendment by the owner of the affected property.[viii] This statute was added in response to the Idaho Supreme Court’s decision in Adams v. Kimberley One Townhouse Owner’s Ass’n, Inc., 158 Idaho 770, 352 P.3d 492 (2015).
In Adams, a homeowner purchased property in a homeowners’ association subject to CC&Rs. These CC&Rs did not restrict the owner’s ability to rent his unit. Subsequently, the homeowners’ association amended the CC&Rs to prohibit owners from renting their property for less than six months. The homeowner argued that the homeowners’ association amendment unlawfully restrained the free use of his property. The Idaho Supreme Court disagreed, upholding the addition of the rental restriction to the CC&Rs. In response, the legislature passed Idaho Code section 55-115(3) to permit homeowners in an association to freely use their land and get the expected economic benefit they envisioned when they purchased the property. Nothing in Idaho Code 55-115(3) prevents the enforcement of a valid CC&R restriction limiting a property owner’s right to transfer an interest in land or the structures on it such as with a lease if the property was subject to that CC&R prior to the time the homeowner acquired his interest in the property.
A County Court may determine the reasonableness of attorney’s fees and costs assessed against a member.[ix] In an action to determine the reasonableness of attorney’s fees and costs assessed by the homeowner’s association against a member, a court may award reasonable attorney’s fees and costs to the prevailing party.[x]
Note: This post is not legal advice, and should not be relied upon as such. Different sets of facts will likely lead to different legal conclusions. If you need assistance with real property matters, call Macomber Law, PLLC for a forty-five minute, no charge consultation to see if we can help.
[i] “Homeowner’s association” means any incorporated or unincorporated association. I.C. § 45-810(6).
[ii] I.C. § 55-115(2).
[iii] I.C. § 55-115(2)(a).
[iv] I.C. § 55-115(2)(b).
[v] I.C. § 55-115(2)(c).
[vi] I.C. § 55-115(2)(d).
[vii] I.C. § 55-115(2)(a).
[viii] I.C. § 55-115(3).
[ix] I.C. § 55-115(4).