HOAs Vs Homeowners: Selective Enforcement
What is Selective Enforcement?
It happens, and probably more than you realize. Board members (or a particular board member) will enforce the rules and regulations for some – but not all. Every now and then it’s a personal vendetta against a homeowner or their renter, and it can interrupt the peaceful living they have every right to enjoy.
Our last President was rampant with selective enforcement. He instructed the management company to have all calls referred to him; whether it be keys to the pool, maintenance requests, RV rental spaces, Clubhouse rentals, etc. His friends received privileges, and if he didn’t like you, he abused his power to send out violation notices. He once threatened me with a fake violation notice – that’s when I decided to run for the Board and unseat him.
What about the other board members, you may ask? Two resigned in protest as they didn’t want to serve with him (those seats remained vacant). The other two were his “quorum” buddies and allowed him to do as he pleased.
I once sat on a jury trial of an HOA lawsuit about selective enforcement. The board President (representing the HOA) was suing a homeowner for repeated violations. The homeowner lived across the street from the President. They personally didn’t like each other, and the homeowner suffered consequences from the abuse of power. The President set up a security camera aimed at the neighbor’s home. A blatant invasion of privacy while recording personal activity. The homeowner won his case, but what a shame it required going to court for peace and quiet.
First Step of Protection: Know Your Governing Documents
Most issues that arise in an HOA have a defined resolution by referring to the governing documents. If you know them, you may also avoid any situations that may cause distress.
I find that most homeowners and many board members don’t even know what’s in their governing documents.
The documents I’m referring to include the Declaration of Covenants, Conditions, and Restrictions (CC&Rs), the Bylaws and Rules & Regulations.
These recorded documents are what govern the HOA and form its operational structure of which all parties must comply – and therein, lies the power of information and knowledge.
Covenants, Conditions, and Restrictions (CC&Rs)
Think of the CC&Rs as the “Constitution” usually designed by the Developers of the community. It contains the description of the property; the difference between the “common areas” (owned by all homeowners) and the living units (owned privately by the homeowners).
It will also cover possible future functions of the HOA, which may include developing more units, mergers, easements, some of which are elements already established through the HOA’s development and existence for any period of time.
The CC&Rs will also cover subjects such as elections, assessments, and duties of the association. Here is where you can gain the power of information. In addition, it will likely define architectural guidelines on approval for renovations or improvements to individual units.
The knowledge of being familiar with the CC&Rs will help avoid future dispute issues.
The Bylaws basically pertain to the Officers and Board Members; terms, duties, meetings, elections, etc. It usually outlines the power(s) of the Board, and the process for enforcing violations. Many require a “Courtesy Notice” of an alleged violation before assessing any fines. This allows the homeowner time to rectify whatever the non-compliance may be.
Keep in mind, that not enforcing the rules makes the Association seem ineffective, and that can give an arbitrary appearance of selective enforcement. That doesn’t mean a Board isn’t flexible. They are at liberty to make exceptions if warranted; reserving these exceptions to “exceptional” circumstances. Although, states differ, not enforcing a rule may invalidate it.
Remember, the Bylaws should contain the procedure for compliance issues; allowing homeowners to comply, respond, and the right to a hearing, if requested. Many infractions are basically unintentional due to a lack of knowledge within the governing documents.
Rules & Regulations
The creation and adoption of the Rules & Regulations are by the Board Members. Even if enacted by previous boards, new board members typically have the authority to change, amend and/or create new rules. These should be for the benefit of the community and designed to deal with specific issues that the Association may have in its individuality of operation.
These can include parking enforcement, pool hours, clubhouse rentals, satellite and cable installation, pet policies, and most usage of amenities.
Refuting Selective Enforcement
One of the most important considerations for both the HOA and community members is that enforcement is reasonable and nondiscriminatory. There needs to be consistency in enforcing the governing documents of an Association. When the HOA takes action upon perceived violations, it should not be arbitrary and in a reasonable manner according to the procedures and due process outlined in the governing documents.
All actions taken against a homeowner are documented in Executive Meeting Minutes by board vote. If it results in a violation notice, it should cite the code of the alleged infraction.
If there is a management company, include them in any correspondence or documentation. Although the motto of most management companies is “we take direction from the board;” licensed community managers do not want an appearance of improper activity continuing once a notification is received. They value their license above all.
Pick your battles. HOAs have the resources. The board members don’t incur any expenses for legal fees, nor escalated arbitration or mediation expenses. Most also have a D & O (Directors & Officers) insurance policy. Meaning, an insurance claim will pay legal expenses, and if found in fault, the insurance company pays the liability. The exception is usually if the act had a willful or malicious intent, which can be hard to prove.
As a homeowner, you have the right to see any / all documents, bank statements, violation reports, meeting minutes, etc. The only records homeowners are usually not allowed to have access to are other homeowners private information, such as assessments owed, outstanding fines, individual contact information, or lease agreements on file. All other records and documents are public to the homeowner. You pay your assessment fees; it is your money. Yes, Board Members are volunteers, but hold the fiduciary responsibility of adhering to the governing documents.
Continuing Education for HOA Homeowners
Attend a training class or seminar on the operations of an HOA. Find out when the next HOA expo is scheduled, and enjoy networking with other homeowners, board members, and vendors. There are also various classes available covering State laws governing HOAs (e.g. HOA elections, fining process, homeowner rights, finances, etc.) It’s a good way to meet various leaders in the industry and get free advice. The instructors are usually professionals in the HOA industry, and available after class to answer specific questions or insight into issues.