Alabama's 2016 HOA Act created a statutory framework for residential homeowners' associations where none existed before — but its opt-in structure, narrow scope, and common-law backstop complicate the analysis in nearly every case.
Doctrinal Framing
Alabama was among the last states to enact a comprehensive statutory framework for residential homeowners' associations. Before the Alabama Homeowners' Association Act, Ala. Code §§ 35-20-1 to 35-20-13 (Act 2015-292, effective January 1, 2016), HOA disputes were governed almost entirely by common law — contract principles applied to declarations of covenants, conditions, and restrictions, equitable enforcement doctrines, and general corporate law applicable to the nonprofit associations that typically managed communities.
The Act's passage changed the baseline but did not displace common law for pre-existing associations that have not opted in. Understanding what the Act does and does not cover is therefore the threshold question in any Alabama HOA dispute.
Scope and Applicability: § 35-20-3
Section 35-20-3 defines the Act's reach with precision:
This chapter applies to all developments subject to a declaration providing for a homeowners' association recorded on or after January 1, 2016, and any association formed prior to that time, provided the association, by a majority of its members, elects to be governed by this chapter.
Three exclusions are equally important:
- Developments for commercial, industrial, or other nonresidential use;
- Associations subject to regulation under Chapters 8 or 8A of Title 35 — the older Condominium Ownership Act and the Uniform Condominium Act, which have their own frameworks; and
- Real estate cooperatives, time-share developments, or campgrounds.
The practical result: post-2016 residential communities are automatically governed by the Act. Pre-2016 communities fall under the Act only if a majority of members vote to opt in. Until that vote occurs, disputes in pre-2016 communities are resolved under common law augmented by the governing documents.
Formation and Organizational Requirements: §§ 35-20-5 to 35-20-7
Filing Requirements: § 35-20-5
Section 35-20-5 requires that the association's organizational documents — primarily the declaration — be recorded in the office of the judge of probate in the county where the development is located. The recording requirement gives constructive notice to purchasers and lenders. An unrecorded declaration creates obvious title risk and may not be enforceable against subsequent purchasers who lack actual notice.
Board Elections: § 35-20-7
Section 35-20-7 addresses the election of the board of directors and officers. It grants the association authority to modify the declaration through the process established in the governing documents, subject to any statutory constraints. The Act does not specify supermajority vote requirements for amendments; those are left to the declaration and bylaws.
Notice of Election: § 35-20-9
Section 35-20-9 requires notice of elections to be provided in accordance with Chapter 3 of Title 10A (Alabama's nonprofit corporation law), which serves as the background law for the corporate governance aspects of associations.
Board Powers: § 35-20-11
Section 35-20-11 is the Act's enforcement provision. To the extent authorized by the declaration and governing documents, the board may:
- Suspend a member's right to use association facilities for nonpayment of assessments, subject to the constraint that access to the member's lot itself may not be denied — a meaningful limitation on how far use-suspension can go.
- Assess reasonable penalties against a member for any violation of the declaration or board rules, but only after the member is afforded the opportunity to be heard and represented by counsel before the board of directors.
The due process requirement in subdivision (2) is notable. Florida's HOA and condo enforcement statutes similarly require pre-fine hearings, but Alabama's Act makes counsel-representation an explicit component of the required opportunity. A fine imposed without a proper hearing — particularly one where the owner's right to appear with counsel was not honored — is vulnerable to challenge.
Tenants. If a tenant of a member violates the declaration, the board may exercise use-suspension or fine authority directly against the tenant after notice and a hearing. The penalty assessed against a tenant constitutes an assessment for lien purposes under § 35-20-12, which means the landlord-member may ultimately bear the liability.
Assessment Liens: § 35-20-12
Section 35-20-12 establishes the lien mechanism. Key provisions:
- Lien declaration. The association has a lien on every lot for unpaid assessments, arising from the date the assessment is due. Enforcement may proceed under the declaration, the governing documents, or the statute.
- Priority. The lien has priority over all subsequent liens and encumbrances except state and county ad valorem taxes, municipal improvement assessments, UCC fixture filings, and mortgages and deeds of trust securing an indebtedness. Unlike Florida's super-priority regime, Alabama's assessment lien is junior to existing mortgages — a meaningful distinction for underwater properties.
- Pre-recordation notice. At least 30 days before recording the statement of lien, the association must give written notice by certified mail to the owner of record showing the lien will be recorded.
- Statement of lien. Within 12 months from the date an assessment becomes due, the association must record a verified statement of lien with the probate court, containing a lot description, the owner's name, the association's name, the amount of unpaid assessments, and any other interests and costs claimed.
- Foreclosure. The association may enforce the lien by a court action in the county where the lot is located, and the court may order a sale. Notice of sale must be published in a newspaper in the county, once a week for three successive weeks. Unlike Florida, the Alabama statute does not require the sequential pre-lien notice framework of §§ 720.3085(4)-(5); the 30-day pre-recordation certified-mail notice is the primary procedural prerequisite.
Records Access: § 35-20-13
Section 35-20-13 requires the association to maintain and make available to members and potential purchasers — on written request, within 30 days, and upon payment of reasonable costs — specified documents including:
- Current assessments, pending assessments, and mandatory dues;
- A description of common areas;
- The current operating budget and reserve funds;
- Insurance documentation;
- Outstanding loans and collateral;
- Contact information for current officers and agents;
- The current declaration and amendments;
- Transfer or initiation fees;
- A list of all existing common areas; and
- Pending lawsuits, judgments, liens, or arbitration proceedings contained in public records.
The 30-day deadline is notably less aggressive than Florida's 10-business-day rule, and the statute does not include a per-day damages provision for non-compliance. A member denied access in Alabama therefore faces a different enforcement calculus: a claim for breach of statutory duty rather than the statutory minimum-damages structure that Florida provides.
Comparison to Pre-2016 Common-Law Regime
Before the Act's effective date, Alabama HOA disputes were resolved under contract and equity:
- Declaration enforcement proceeded as a contract claim or injunction action. Courts applied standard contract interpretation principles, with doubts generally resolved against restrictions on property use.
- Board authority was defined entirely by the corporate documents and general corporate law. There was no statutory right to a pre-fine hearing, no statutory lien framework, and no mandatory records-disclosure obligation.
- Lien rights depended entirely on whether the declaration contained an express lien provision. A declaration without a lien clause left the association to pursue only an unsecured money judgment.
The Act fills these gaps for post-2016 communities and for pre-2016 communities that opt in. For communities that have not opted in, the common-law regime still applies, and practitioners must analyze the specific declaration language to determine what rights and remedies exist.
Owner Remedies Under the Act
The Act does not enumerate a private right of action by name but the violation of a statutory duty — such as the failure to provide required records within 30 days, or the imposition of a fine without a proper hearing — can be pursued as a breach of statutory obligation. Where the declaration and the Act overlap, owners can plead both breach of contract (declaration terms) and violation of the statutory requirements, and should do so to preserve all available theories.
Declaratory and injunctive relief are available in the circuit court of the county where the development is located. For monetary claims, the general jurisdiction thresholds determine whether the action proceeds in district or circuit court.
Board Defenses
Where an owner challenges a fine, the board's strongest defense is procedural compliance: documented written notice specifying the violation, a hearing at which the owner appeared or was given the opportunity to appear with counsel, and a written decision that explains the board's rationale. A board that cannot produce that paper trail faces an uphill defense.
On lien challenges, the board must demonstrate timely recording (within 12 months), proper pre-recording notice (30 days by certified mail), and that the amount claimed is authorized by the declaration and the Act. An award of attorney fees in Alabama requires either a contractual fee-shifting provision in the declaration or, for certain claims, a statutory basis. Unlike Florida's assessment lien statutes, the Alabama Act does not itself provide a fee-shifting mechanism; practitioners must look to the declaration for that authority.
Open Questions
Several issues remain unresolved under the 2016 Act:
- Retroactive opt-in procedures. The Act does not specify the procedures a pre-2016 association must follow to conduct a valid opt-in vote, other than requiring "a majority of its members." Disputes about what constitutes a valid majority (voting interests vs. parcel count) remain subject to the specific governing documents.
- Interaction with neighborhood-specific legislation. Alabama has a long history of local and special acts creating specific community frameworks. Whether the Act supersedes, supplements, or coexists with older special acts is not addressed.
- Attorney fee recovery. Without a statutory fee-shifting provision, each side typically bears its own fees unless the declaration provides otherwise.
Closing
The Alabama Homeowners' Association Act establishes a structural floor for residential communities formed after January 1, 2016, while leaving pre-existing communities to navigate common-law territory unless they affirmatively opt in. For practitioners, the threshold applicability question is not academic — it determines which set of rights, remedies, and defenses is available. For owners in pre-2016 communities, the Act is a potential improvement worth exploring with members before the next significant dispute arises.
Talk to Yates Anderson
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Informational only. Not legal advice. No attorney-client relationship is created by reading this post. Consult a licensed attorney in your jurisdiction.