5 ms·

We're in a single-family home HOA in Portland that prohibits duplexes and DADUs, and everyone's confused about whether this supersedes the HOA rules. I think it

We're in a single-family home HOA in Portland that prohibits duplexes and DADUs, and everyone's confused about whether this supersedes the HOA rules. I think it doesn't; HOAs can still prevent something the law allows, but I'm not certain on that.

CalRobert 7y ago
With luck the law will crush this HOA silliness. Maybe eliminate HOA's altogether.
logfromblammo 7y ago
It depends on the wording of the law, I think. Many HOA agreements have severability clauses and also large antenna bans. But federal law explicitly allows antennas, so that antenna-ban clause is silently severed. It remains in the agreement text, so a naive homeowner might believe it remains in effect, and the HOA might attempt to enforce it using the same forms as all the clauses they can lawfully enforce, but they will always lose if the dispute goes to court. The federal 1996 Telecommunications Act, and OTARD rule in the implementing regulations, explicitly prohibits rules preventing over-the-air reception antennas "by homeowner, townhome, condominium or cooperative association rules, including deed restrictions, covenants, by-laws and similar restrictions". So the law proposed by HB 2001 could sever the clause preventing duplexes or render the entire HOA agreement invalid (if no severability clause), and therefore make duplexes allowed in HOA neighborhoods. But... it does not. It only reaches down to the "local government" level, which is the municipal or county zoning restrictions. The NIMBYest of the NIMBYs will already have HOA agreements that match or make more restrictive the zoning requirements of their municipalities. The effect will probably be to increase the prevalence of HOAs to impede progress, in lieu of zoning. I am not a lawyer or legislator, but the bill should have been amended to burn out anti-density covenants, deed restrictions, and association by-laws.
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CalRobert 7y ago

With luck the law will crush this HOA silliness. Maybe eliminate HOA's altogether.

logfromblammo 7y ago

It depends on the wording of the law, I think. Many HOA agreements have severability clauses and also large antenna bans. But federal law explicitly allows antennas, so that antenna-ban clause is silently severed. It remains in the agreement text, so a naive homeowner might believe it remains in effect, and the HOA might attempt to enforce it using the same forms as all the clauses they can lawfully enforce, but they will always lose if the dispute goes to court. The federal 1996 Telecommunications Act, and OTARD rule in the implementing regulations, explicitly prohibits rules preventing over-the-air reception antennas "by homeowner, townhome, condominium or cooperative association rules, including deed restrictions, covenants, by-laws and similar restrictions". So the law proposed by HB 2001 could sever the clause preventing duplexes or render the entire HOA agreement invalid (if no severability clause), and therefore make duplexes allowed in HOA neighborhoods. But... it does not. It only reaches down to the "local government" level, which is the municipal or county zoning restrictions. The NIMBYest of the NIMBYs will already have HOA agreements that match or make more restrictive the zoning requirements of their municipalities. The effect will probably be to increase the prevalence of HOAs to impede progress, in lieu of zoning. I am not a lawyer or legislator, but the bill should have been amended to burn out anti-density covenants, deed restrictions, and association by-laws.

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