5 HOA Provisions That Boards Enforce But Probably Can't

A covenant can be validly recorded, correctly quoted, and still fail to do anything, because a federal rule or a state statute passed after it was written has voided it or narrowed it. Five of these show up constantly.

An owner gets a violation letter quoting a section number from the declaration. The section exists, the quotation is accurate, and the board is applying it exactly as written.

None of that settles whether the provision can be enforced. Covenants are written once and then left alone for decades, while the statutes around them keep moving. When the two disagree, the document is the one people have in front of them, and the statute is the one that decides.

Below are five provisions where that gap is common enough to be worth checking before anyone spends money on the fight. Every rule here is quoted from the statute or regulation itself. Every one of them also has a real carve-out, and the carve-out is usually what a well-advised board will point to, so each section covers what the board can still do as well as what it probably can't.

1. Why a Recorded Covenant Can Stop Working

A covenant can be overridden three ways: federal preemption, a state statute declaring it void, or a statute that limits who the covenant binds.

Recording a document does not immunize what it says. Federal preemption can bar enforcement outright, as it does for certain antennas. A state statute can declare a class of covenant void, which is how most solar-rights laws are written. Or a statute can leave the covenant standing and limit who it binds, which is the approach several states take with rental restrictions.

The third route surprises people most, because the language stays in the document and reads as though it applies to everybody, while no longer reaching the owners the statute carved out.

2. Satellite Dishes and Antennas

The FCC's OTARD rule names homeowners association rules expressly, but reaches only areas within the owner's exclusive use or control.

The governing rule is 47 C.F.R. §1.4000, known as the OTARD rule. It applies to any restriction, including "any private covenant, contract provision, lease provision, homeowners' association rule or similar restriction," that impairs installation, maintenance or use of a covered antenna.

Covered antennas include direct broadcast satellite dishes one meter or less in diameter, certain fixed wireless antennas one meter or less, and antennas used to receive television broadcast signals, which carry no size limit at all. A restriction "impairs" if it unreasonably delays or prevents installation, unreasonably increases the cost, or precludes reception of an acceptable quality signal.

What the board can still do

The rule reaches only property "within the exclusive use or control of the antenna user" where that user has an ownership or leasehold interest. A balcony or patio assigned to a unit generally sits inside that description. A roof, an exterior wall, or general common elements generally do not, and a board can restrict installations there without touching OTARD at all.

The rule also preserves restrictions necessary for a clearly defined, legitimate safety objective, which has to be stated in the restriction or in a document readily available to antenna users and applied even-handedly to comparable fixtures, and restrictions necessary to preserve a historic district or site listed in or eligible for the National Register.

The part boards tend not to know

Once a proceeding is brought under subsection (d) or (e) to test a restriction, the entity seeking to enforce it must suspend all enforcement efforts pending completion of review. No fines accrue and no attorney's fees may be collected while that is pending. If the owner loses, they still get at least a 21-day grace period to comply, and no fine or penalty may be collected from an owner who complies within it, unless the restriction's proponent shows in the same proceeding that the owner's claim was frivolous.

That suspension has a limit worth knowing in the same breath. It does not apply to restrictions resting on the safety or historic preservation grounds in subsection (b), which is the ground a board is most likely to be standing on if it has thought about the question at all.

3. The American Flag

Federal law bars associations from adopting or enforcing a policy against displaying the U.S. flag, but preserves reasonable time and place rules.

The Freedom to Display the American Flag Act of 2005, Pub. L. 109-243, provides that a condominium association, cooperative association or residential real estate management association "may not adopt or enforce any policy, or enter into any agreement" that would restrict or prevent a member from displaying the flag of the United States on residential property within the association with respect to which the member has a separate ownership interest or a right to exclusive possession or use.

Two citation details are worth having right, because they are commonly reported wrong. The Act is codified as a note to 4 U.S.C. §5 rather than as section 5 itself. And despite carrying "of 2005" in its short title, it was approved on July 24, 2006.

What the board can still do

Section 4 preserves "any reasonable restriction pertaining to the time, place, or manner of displaying the flag" that is necessary to protect a substantial interest of the association, along with the flag code and customs of proper display. Rules about flagpole height, mounting hardware or placement are a different question from a ban, and they can survive.

The statute is also narrow on its face. It covers the flag of the United States, leaving state flags, military service flags and political signs to state law, which several states do address separately.

4. Solar Panels

In all five states checked, a covenant prohibiting solar is void by statute, and in all five the board keeps control over placement and appearance.

Solar rights statutes are the clearest example of a legislature voiding a class of covenant outright. California Civil Code §714(a) says a covenant or governing-document provision that effectively prohibits or restricts installation or use of a solar energy system "is void and unenforceable." Arizona's §33-439 and Colorado's C.R.S. §38-30-168 use the same phrase.

What differs is how much authority the board keeps, and the spread is wide enough that the state matters more than the general rule does.

Two of these are worth reading closely. Florida's §163.04(2) covers more than panels: a covenant may not prohibit or have the effect of prohibiting "solar collectors, clotheslines, or other energy devices based on renewable resources," and subsection (3) awards costs and reasonable attorney's fees to the prevailing party. Colorado's statute is broader still, reaching wind-electric generators, geothermal devices and heat pump systems alongside solar.

Texas §202.010 voids the prohibition and then hands most practical control back. The association can require roof-mounted devices to conform to the roof slope and to use frames and visible wiring in a silver, bronze or black tone commonly available in the marketplace. It can also designate the installation area, unless an alternate location would increase estimated annual energy production by more than 10 percent as measured with a public National Renewable Energy Laboratory modeling tool.

5. Assistance Animals Under a No-Pets Rule

The Fair Housing Act duty to consider a reasonable accommodation is unchanged. What changed in 2026 is which complaints HUD will pursue.

A no-pets covenant is a rule, and a request to keep an assistance animal is a request to modify that rule. 42 U.S.C. §3604(f)(3)(B) provides that discrimination includes "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling." HUD's regulation at 24 C.F.R. §100.204(b) gives the canonical example of waiving a no-pets policy for a seeing eye dog.

So the failure mode is procedural. A board that answers an accommodation request by restating the pet rule has not engaged with the request the statute contemplates.

What changed, and what did not

This area moved twice recently, and most published guidance has not caught up. On September 17, 2025, HUD withdrew both FHEO Notice 2013-01 and FHEO Notice 2020-01, the assistance animal guidance that nearly every article on this subject still cites. The withdrawal states they "should not be relied upon as authoritative."

On May 22, 2026, HUD issued enforcement guidance stating that, effective immediately, for animal-related accommodation complaints its Office of Fair Housing and Equal Opportunity "will find reasonable cause and recommend charges only for those cases involving animals trained to provide disability-related assistance."

That is a statement about HUD's enforcement priorities, and the memo is explicit that it is not more than that. In the same document HUD writes that "nothing in this enforcement guidance affects the rights of parties to seek redress through a private action in court," and notes the Fair Housing Act's two-year window for filing a civil action. The memo also says it does not address complaints under Section 504 of the Rehabilitation Act or the Americans with Disabilities Act.

Read plainly: the statutory duty, the private right of action, and state and local fair housing laws are all where they were. HUD has also said it intends to conduct notice and comment rulemaking in this area, so the current posture is an interim one. This is the fastest-moving item in this guide, and it is the one where a board acting on a headline rather than on the document itself is most exposed.

6. Rental Restrictions Against Owners Who Bought Earlier

California voids the rental covenant outright. Florida limits who an amendment binds, and splits by property type between condominiums and HOAs.

California Civil Code §4740(a), part of the Davis-Stirling Common Interest Development Act, provides that an owner is not subject to a governing-document provision prohibiting rental or leasing unless that provision was effective before the date the owner acquired title. Section 4741 goes further, barring any provision that "prohibits, has the effect of prohibiting, or unreasonably restricts" rental, and prohibiting rental caps set below 25 percent of the separate interests.

The sentence that matters most sits in §4741(f). Compliance has been required since January 1, 2021 "regardless of whether the common interest development has revised their governing documents," and boards were required by July 1, 2022 to amend any declaration carrying a prohibited restrictive covenant, either by deleting the covenant or by restating it to comply. Where that never happened, the language sits in the declaration unamended and inoperative, and an owner reading the document alone has no way to tell.

Florida takes the other route. Under Fla. Stat. §718.110(13), an amendment prohibiting rentals, altering the duration of the rental term, or limiting the number of times an owner may rent applies only to owners who consented to it and owners who acquired title after its effective date. The amendment is valid, and its reach is what the statute cuts, which means two neighbors in the same building can be subject to different rules depending on when they closed.

That statute is in Chapter 718 and governs condominiums only. Florida homeowners associations sit under Chapter 720, and the parallel rule at §720.306(1)(h) is not the same rule. It reaches only governing documents and amendments enacted after July 1, 2021, and subparagraph 2 carves a wide exception out of the middle of it: an association may amend to prohibit or regulate rental agreements for a term of less than six months, and may prohibit renting a parcel more than three times in a calendar year, and those amendments apply to all parcel owners, including owners who bought earlier and never consented.

So the question a Florida owner is actually asking has a different answer depending on which chapter the community was formed under, and on what the amendment does. A blanket rental ban and a six-month minimum lease term are treated differently under Chapter 720 even though both read like rental restrictions in the document.

What the board can still do

California expressly preserves the ability to prohibit transient or short-term rentals of 30 days or less under §4741(c), which is how most communities address the issue people usually mean when they talk about rental restrictions. If you are working through this in your own documents, our guide on what CC&Rs say about short-term rental restrictions covers that side in more detail.

7. What to Do With Any of This

Owners should check the date and the location. Boards should check whether the covenant has been overtaken and whether the rule was adopted properly.

If you are an owner, two questions do most of the work. First, when did the provision take effect relative to when you took title, since that decides the rental question in both states above. Second, where exactly is the thing being objected to, since an assigned balcony and a common-element roof are treated differently under OTARD and under most solar statutes.

If you are on a board, the cheapest version of this is a read of the declaration against the current statute before a violation letter goes out, rather than after. Enforcing a provision that has been overtaken costs legal fees and produces nothing, and in Florida's solar statute the prevailing party is entitled to costs and attorney's fees.

Whether a specific provision is enforceable against a specific owner turns on the full document set, the state, and facts a general article cannot see. What an article can do is tell you which provisions are worth asking about. Reading the board's meeting minutes is often where you first see a rule being adopted or enforced, and reading an amendment before voting on it is where a community can avoid adopting one of these in the first place.