Definition of "Can landowner create an HOA?"

Over the past few years, Homeowners Associations (HOAs) have become increasingly common. Despite the excitement of investing in land to construct your dream home, it’s essential to carefully weigh all factors, especially those associated with an HOA.

When individuals contemplate buying land in the US, they delve into various considerations such as the size of the lot, the architectural style permitted, zoning regulations, and the availability of amenities nearby. A common question arises amid these considerations: Can a landowner create an HOA? But before answering this question, let’s see what an HOA is.

What is an HOA?

The average homeowner association (HOA) in the USA is a self-governed entity within neighborhoods known as “common-interest communities.” Essentially, it’s a collective effort where homeowners pool resources to maintain and enhance their living environment. The HOA is typically managed by resident volunteers who serve on the board of directors, offering their time and expertise without compensation. The history and origins of HOAs date back to the 1900s, but since then, the number of associations has increased significantly. 

One of the primary functions of an HOA is to establish and enforce rules and bylaws that govern the properties within the community. These regulations help maintain uniformity and preserve property values. For instance, they may dictate guidelines for architectural standards, landscaping requirements, noise restrictions, and pet policies.

Homeowners must pay HOA fees to fund the operation and upkeep of common areas and amenities, such as swimming pools, fitness centers, parks, and parking facilities. These fees are typically assessed regularly and cover various maintenance expenses, including landscaping, snow removal (where applicable), exterior repairs, and insurance for shared facilities.

Participation in an HOA provides homeowners with a sense of community involvement and ensures that everyone contributes to the upkeep and improvement of shared spaces. Additionally, the HOA board is a liaison between residents and outside entities, representing the community's collective interests and advocating for its members when necessary.

Does the landowner have the authority to establish an HOA?

The short answer is yes, a landowner can create an HOA, but several important considerations and steps are involved in the process.

  • Legal Authority:  In most states, a landowner has the legal authority to establish an HOA for a residential development they own. This authority is usually granted through state laws governing the creation and operation of HOAs. However, it's essential to ensure that the creation of the HOA complies with all applicable laws and regulations.
  •  Governing Documents: Establishing an HOA requires the creation of governing documents, such as a Declaration of Covenants, Conditions, and Restrictions (CC&R), as well as bylaws and articles of incorporation. These documents outline the rights and responsibilities of homeowners within the community, as well as the powers and duties of the HOA board.
  • Approval Process: Depending on the jurisdiction and the specific requirements of the governing documents, creating an HOA may require approval from local authorities, such as city or county planning departments. Additionally, if the development is subject to any existing deed restrictions or covenants, the creation of an HOA may require the consent of affected property owners.
  • Membership: Once the HOA is established, the landowner typically becomes the initial member of the association. As additional properties are developed and sold within the community, homeowners are typically required to become members of the HOA and abide by its rules and regulations.
  • Responsibilities: As the creator of the HOA, the landowner assumes significant responsibilities, including the maintenance of common areas and amenities, the enforcement of rules and regulations, and the collection of dues and assessments from homeowners.
  • Transition: As the community grows and evolves, the landowner may choose to transition control of the HOA to a volunteer board of homeowners elected by the community. The governing documents typically outline this transition process and may involve specific legal requirements.
  •  Legal and Financial Considerations: Establishing and operating an HOA involves various legal and financial considerations, including liability protection, insurance coverage, budgeting, and financial management. Landowners must seek professional advice from attorneys, accountants, and property management professionals to ensure compliance with all legal and regulatory requirements.

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