Legal Framework · The Governance Hierarchy

Federal Law Sits Above Everything: Owner Rights the Board Cannot Restrict

At the top of the eight-tier hierarchy of governance authority sits federal law — and, alongside it, a set of state statutes that protect specific owner rights so strongly that they function the same way. When an owner asserts one of these rights, “the Declaration says no” is not an answer. This article maps the rights no Declaration provision and no board rule can lawfully restrict.

The Bottom Line

Every governing document a community association lives by — the recorded Declaration, the Articles, the plat, the bylaws, the rules, the resolutions — sits beneath federal law. That is Tier 1 of the hierarchy, and the rule that governs the entire structure is simple: higher always wins. No provision of the Declaration and no rule the board adopts can authorize what federal law forbids, and no covenant can override a right that federal law guarantees. Four federal regimes show up most often: the Fair Housing Act, the FCC’s OTARD rule, the Housing for Older Persons Act, and IRC § 528. Running parallel to them is a band of state-protected owner rights — flag display, religious displays, solar energy devices, and electric-vehicle charging — that override the Declaration wherever they apply. The diagnostic question CIC-SC teaches, “Where does this come from?”, has a hard ceiling: if the answer is “a covenant” or “a board rule,” and the owner is standing on one of these rights, the covenant loses.

Why Tier 1 Is Different from Every Tier Below It

The hierarchy of governance authority is usually read as a chain of internal documents: a bylaw cannot contradict the Declaration, a rule cannot contradict the bylaws or statute, a resolution cannot rewrite the rules. Within that chain, the Declaration is the community’s constitution — the highest authority the association itself created. But the association did not create Tier 1. Federal law was not adopted by the developer, recorded in the county, or ratified by a member vote. It applies to the association the way it applies to any landlord, employer, or housing provider in the country, and it cannot be amended, waived, or opted out of by anyone inside the community.

That distinction has a practical consequence boards routinely miss. When a covenant and a statute conflict within the chain, the board often has room to argue interpretation. When a covenant conflicts with Tier 1, there is nothing to argue: the covenant is unenforceable to the extent of the conflict, and a board that enforces it anyway is acting outside its authority — the textbook definition of an ultra vires act, which is one of the fastest ways a director loses the protection of the business judgment rule.

The Rights That Override the Declaration

Here are the seven rights covered in this article, each paired with the law that puts it above the Declaration. Federal rights apply nationwide; the state-protected rights apply where the relevant statute applies (this article gives the Texas and Florida versions).

Where any of these rights applies, it sits above the Declaration. A covenant or rule that conflicts with it is unenforceable to the extent of the conflict.

The Fair Housing Act: A Process Statute, Not a Litigation Statute

The Fair Housing Act (42 U.S.C. § 3601 et seq.) prohibits discrimination in housing on the basis of seven protected classes: race, color, national origin, religion, sex, familial status, and disability. Most of what trips up association boards is not overt discrimination — it is the disability provisions, which require associations to make reasonable accommodations in rules, policies, and practices, and to permit reasonable modifications to the physical premises, when necessary to afford a person with a disability equal use and enjoyment of their home.

The single most common collision: an owner or resident with a disability requests an assistance animal in a community whose Declaration or rules prohibit pets. The board cannot answer with the Declaration. A no-pets covenant is a policy, and the FHA requires the association to make a reasonable exception to that policy. An assistance animal is not a pet for FHA purposes — which means no pet fee, no pet deposit, no breed or weight restriction, and no demand for a specific diagnosis.

The two-question rule for assistance animals.

When the disability or the disability-related need is not obvious, the board may ask exactly two questions: (1) Does the person have a disability? and (2) Is there a disability-related need for the animal? If the answer to both is yes, grant the request. The board may request reliable supporting documentation when the need is not apparent, but it may not interrogate the diagnosis, demand medical records, or insist on a particular credential for the animal.

The interactive process.

The FHA is best understood as a process statute, not a litigation statute. A board that responds promptly, evaluates each request individually, engages in a good-faith back-and-forth (the “interactive process”), documents its reasoning, and communicates respectfully will satisfy the statute even when the ultimate answer is no. An accommodation request can be denied when it is unreasonable, imposes an undue financial or administrative burden, or fundamentally alters the nature of the community — but those are narrow exceptions reached through the process, not invoked to short-circuit it.

The FCC OTARD Rule: The Anti-Dish Rule That Doesn’t Survive

The FCC’s Over-the-Air Reception Devices rule (47 C.F.R. § 1.4000) limits the restrictions an association may impose on satellite dishes one meter or less in diameter, certain television antennas, and fixed wireless antennas — regardless of what the Declaration says. A restriction is preempted if it (1) unreasonably delays or prevents installation, maintenance, or use; (2) unreasonably increases the cost; or (3) precludes reception of an acceptable-quality signal. The rule protects devices installed in areas within the owner’s exclusive use or control — a homeowner’s own roof, balcony, patio, or yard — not the association’s common elements.

The Housing for Older Persons Act: An Age Restriction Is a Privilege You Have to Earn

The Fair Housing Act protects familial status — meaning a community generally cannot exclude households with children. The Housing for Older Persons Act (HOPA) carves out a narrow exception: a community may lawfully operate as housing for older persons and exclude households without an older resident, but only if it satisfies all three of the “55-or-older” requirements. Miss any one, and the age restriction is not just unenforceable — it is an illegal familial-status restriction that exposes the association to FHA liability.

The practical lesson for boards: the age restriction in the Declaration does not maintain itself. A community that recorded an age-restricted covenant decades ago and never published a current policy or verified ages can drift below the 80% line without noticing — and the day it tries to enforce the restriction against a younger household, the missing verification cycle becomes the defense the household uses to defeat it. The restriction in the document is necessary, but it is not sufficient. The three HOPA elements are what actually hold it up.

IRC § 528 and Form 1120-H: The Federal Tax Tier, Briefly

Tier 1 is not only about owner rights — it also sets the association’s federal tax footing. Internal Revenue Code § 528 lets a qualifying homeowners association elect, year by year, to be taxed as a homeowners association by filing Form 1120-H rather than the standard corporate return on Form 1120. The election generally exempts “exempt function income” — member assessments collected to maintain association property — from federal tax, taxing only net non-exempt income (such as interest, rental, or laundry-room income) at a flat rate. The election is made annually and is generally irrevocable for that year once filed, so it is a board-level financial decision, not an afterthought. This article does not turn boards into tax preparers; the point is structural. The association’s tax status flows from a federal statute that no covenant alters, and the board’s job is to ensure the return is filed and the election is made deliberately with the association’s CPA — not missed.

State-Protected Rights That Override the Declaration

Federal law is not the only authority that sits above the Declaration. Each state has enacted a band of statutes that protect particular owner rights so firmly that, where they apply, they override a conflicting covenant exactly the way Tier 1 does. They are state-specific, so the analysis changes at the state line — but the structural move is identical: the owner asserts the right, and “the Declaration prohibits it” is not a lawful answer. Below are the four that come up most, with the Texas and Florida versions side by side.

Flag Display

Texas.

Texas Property Code § 202.011 bars a property owners’ association from prohibiting an owner from displaying the flag of the United States, the State of Texas, or an official flag of any branch of the U.S. armed forces. The association retains authority to adopt reasonable rules about the size and number of flags, the size and location of a flagpole, and the manner of display — but it cannot ban the protected flags outright.

Florida.

Florida Statutes § 720.304 (HOAs) protects an owner’s right to display, in a respectful manner, one portable, removable U.S. flag, and on specified holidays an official flag of the U.S. Army, Navy, Air Force, Marine Corps, Space Force, or Coast Guard. A condominium owner has a parallel right within the unit and on limited common elements under Chapter 718. As in Texas, the association may impose reasonable manner-of-display standards but cannot prohibit the display.

Religious Displays on Doors and Entries

Texas.

Texas Property Code § 202.018 prohibits an association from enforcing a restriction that would bar an owner from displaying or affixing a religious item — such as a mezuzah or a cross — on the entry door or door frame of the owner’s dwelling, subject to reasonable limits on size and the manner that protect health and safety or the structure itself. A blanket “nothing on doors” rule cannot be applied to sweep away a protected religious display.

Florida.

Florida Statutes § 718.113(6) gives a condominium unit owner the right to attach a religious object not exceeding specified dimensions to the mantel or frame of the unit’s entry door, notwithstanding any provision in the declaration or rules to the contrary. The protection is calibrated — size-limited and entry-focused — but within those limits the declaration yields.

Solar Energy Devices

Texas.

Texas Property Code § 202.010 voids a restrictive covenant that prohibits or restricts an owner from installing a solar energy device. The association may regulate placement to the extent the regulation does not effectively prohibit the device or increase its cost by more than a statutory threshold or decrease its efficiency by more than a statutory threshold. The line the statute draws is the difference between regulating placement (allowed) and effectively prohibiting the device (not allowed).

Florida.

Florida Statutes § 163.04 prohibits any deed restriction, covenant, or similar binding agreement from preventing the installation of solar collectors or other energy devices based on renewable resources. An association may determine the specific location where collectors are installed on the roof, but only if doing so does not impair the device’s effective operation. Again: placement, yes; prohibition, no.

Electric-Vehicle Charging Stations

Texas.

Texas Property Code § 202.019 bars a property owners’ association from prohibiting an owner from installing an electric-vehicle charging station for the owner’s personal use in an area the owner is entitled to use, such as a dedicated parking space or garage. The association may adopt reasonable standards — installation by a licensed electrician, compliance with applicable codes, owner responsibility for cost, maintenance, and any increased insurance — but cannot ban the station.

Florida.

Florida Statutes § 718.113(8) (condominiums) and § 720.3045 (HOAs) protect an owner’s right to install an EV charging station, and a corresponding natural-gas station, within the boundaries of the owner’s unit or a limited common element or designated parking area. The owner bears the cost, installation, insurance, and electricity usage, and the association may require reasonable architectural and engineering standards — but a flat prohibition is unenforceable.

How a Board Actually Applies This

When an owner asserts one of these rights, the board’s first move is not to open the Declaration — it is to run the hierarchy from the top. Ask the diagnostic question CIC-SC teaches, “Where does this come from?”, about both sides of the conflict. If the owner’s claim comes from federal law or a state owner-protection statute, and the board’s prohibition comes from a covenant or a rule, the board already knows the answer to the conflict before it reads a single line of the restriction. The covenant is in Tier 3 or below; the right is in Tier 1 or its state equivalent; higher wins.

That does not mean the board is powerless. In every one of these areas, the board retains authority to adopt and enforce reasonable standards — manner of display, placement, safety, cost-allocation, documentation. What the board cannot do is convert a covenant into a veto over a protected right. The discipline is to separate the two questions cleanly: Is the right protected? (if yes, it stands) and What reasonable standards may we apply to its exercise? (here the board has room). Mixing the two — using a “standard” to accomplish a prohibition the board could not adopt directly — is exactly the move that fails in litigation.

Key Takeaways

• Tier 1 cannot be amended by anyone inside the community. Federal law applies to the association the way it applies to any housing provider; no covenant, rule, or member vote overrides it.
• The Fair Housing Act is a process statute. Respond promptly, evaluate individually, engage the interactive process, and document — and the board satisfies the FHA even when the answer is no. For assistance animals, apply the two-question rule and charge no pet fees.
• A flat anti-dish rule is preempted. Under FCC OTARD (47 C.F.R. § 1.4000), a board cannot bar a covered dish in the owner’s exclusive-use area where the alternative location kills the signal. It may impose only reasonable, non-impairing standards.
• An age restriction is earned, not assumed. HOPA requires the 80% test, a published policy, and a regular age-verification cycle — all three, continuously. The covenant alone does not hold the restriction up.
• IRC § 528 sets the tax footing. The Form 1120-H election is an annual, deliberate board-level financial decision made with the association’s CPA.
• State law adds flag, religious-display, solar, and EV protections. In both Texas and Florida these override the Declaration; the board may regulate manner and placement but may not effectively prohibit.
• “The Declaration says no” is never the whole answer. When an owner asserts a protected right, run the hierarchy first — then apply only reasonable standards.

Related in This Series

• The Eight-Tier Hierarchy of Governance Authority — the full ladder from federal law down to board resolutions.
• The Declaration Is the Constitution the Board Cannot Override — Tier 3 and the limits of board rule-making.
• Things Your Board Can No Longer Do — the practical inventory of board overreach, including restricting protected rights.
• Selective Enforcement Voids a Valid Rule — why uneven enforcement is the back door into a fair-housing claim.