An owner tells the board she's taking a job out of state and wants to rent her house for two years. A week later another owner asks the board to "do something about all the rentals" before the street turns over. Both requests end up on the same agenda, and both lead to the same first question: where would a leasing rule come from, and can the board reach it?
Skip that question and the board ends up writing a rule first and looking for its authority afterward. The order matters for leasing because a leasing limit touches what owners can do with their own homes.
Three places a leasing limit can come from
Rental limits in an HOA come from one of three sources, and each one changes a different way.
Start with the declaration, the recorded CC&Rs. Cornell's Legal Information Institute describes covenants, conditions and restrictions as "a set of rules governing the use of a certain piece of real estate in a given community," usually recorded with the county, and notes that they "run with the land." A leasing clause in the declaration generally binds owners and later buyers, and it changes only through the amendment process the declaration sets out. Some states limit who a new leasing amendment reaches.
Then come the rules the board adopts. They're easier to change, typically by a board vote at a noticed meeting, recorded in the minutes and published to owners. But a board rule reaches only as far as the documents above it allow, and the authority behind any board rule should trace back to a clause in the declaration or bylaws. A leasing rule works the same way.
Above both sits state law, which can set limits that neither the declaration nor a board rule can get around.
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Which layer a given limit needs
The useful test is whether a proposed limit regulates how owners rent, or whether it narrows the right to rent at all.
The limits that narrow the right to rent include an outright ban, a cap on how many homes can be rented at once, a minimum lease length, or a period an owner must live in the home before renting it. Whether any of those can be adopted as a board rule, or has to go into the declaration by amendment with an owner vote, depends on what your declaration already says and on your state's law. Read the declaration's leasing and amendment sections first, then put the question to the association's attorney before anyone drafts language. If the answer is an amendment, the steps are in our guide to amending your HOA's CC&Rs.
Limits that regulate how renting happens look more like ordinary rule-making, as long as the documents give the board rule-making power over them. A form the owner files when a tenant moves in, a requirement that tenants receive the community rules, and the way violation notices get routed when a tenant is involved all fall here. Even these need a source clause. A registration rule the declaration never contemplated can still be challenged by the owner it's applied to.
Where state law steps in
Some states have written rental limits into statute, and a statute can override the declaration. California's Civil Code section 4741 shows how far a statute can reach. It says an owner "shall not be subject to a provision in a governing document or an amendment to a governing document that prohibits, has the effect of prohibiting, or unreasonably restricts" renting. It bars any cap that limits rentals "to less than 25 percent of the separate interests." And it still lets an association prohibit "transient or short-term rental of a separate property interest for a period of 30 days or less."
The same section told California boards to amend any noncompliant declaration by July 1, 2022. That risk applies anywhere: a leasing clause can be properly recorded and still unenforceable because a statute passed later overrides it. Other states handle leasing differently, and some say nothing specific about it. Before relying on an older leasing clause, check it against your state's current law, with counsel if the clause matters to a decision the board is about to make.
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Before the board drafts anything
Work through these before a leasing proposal reaches a vote:
- Find every leasing provision in the declaration, the bylaws and any adopted rules, and note which document each one sits in.
- Check whether your state has a leasing statute that applies to HOAs and what it says today.
- Decide whether the change the board wants regulates renting or restricts the right to rent, and which document it therefore belongs in.
- Look at who already rents. A restriction that reaches current landlords raises different questions from one that applies only to future buyers, and some states settle that question by statute.
- Write down the reason for the limit, in terms an owner can evaluate.
In HOA-OS the declaration, bylaws and adopted rules sit together in the community's document library, and each unit has its own page listing the people who live there. An owner who lives elsewhere can keep a separate mailing address on file. The unit pages are part of the Community plan, and every plan starts with a 30-day free trial with no credit card at signup. The plans are at hoa-os.com/pricing.
Related Reading
- HOA Short-Term Rental Rules: What Your Board Needs to Know
- CC&Rs Explained: The Rulebook Your HOA Runs On
- Do Renters Pay HOA Fees? Clear Answers for Landlords and Tenants
- The HOA Grandfather Clause: What It Protects and What It Doesn't
Find the document a leasing limit belongs in before anyone on the board writes the limit.