HOAs Vs Homeowners: Selective Enforcement

Updated on May 4, 2019
TLStahling profile image

As President of her HOA Board, Toni relates to the full spectrum of HOA management to homeownership within a wide range of issues & topics.

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.

Bylaws

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.

Questions & Answers

    Comments

      0 of 8192 characters used
      Post Comment

      No comments yet.

      working

      This website uses cookies

      As a user in the EEA, your approval is needed on a few things. To provide a better website experience, toughnickel.com uses cookies (and other similar technologies) and may collect, process, and share personal data. Please choose which areas of our service you consent to our doing so.

      For more information on managing or withdrawing consents and how we handle data, visit our Privacy Policy at: https://toughnickel.com/privacy-policy#gdpr

      Show Details
      Necessary
      HubPages Device IDThis is used to identify particular browsers or devices when the access the service, and is used for security reasons.
      LoginThis is necessary to sign in to the HubPages Service.
      Google RecaptchaThis is used to prevent bots and spam. (Privacy Policy)
      AkismetThis is used to detect comment spam. (Privacy Policy)
      HubPages Google AnalyticsThis is used to provide data on traffic to our website, all personally identifyable data is anonymized. (Privacy Policy)
      HubPages Traffic PixelThis is used to collect data on traffic to articles and other pages on our site. Unless you are signed in to a HubPages account, all personally identifiable information is anonymized.
      Amazon Web ServicesThis is a cloud services platform that we used to host our service. (Privacy Policy)
      CloudflareThis is a cloud CDN service that we use to efficiently deliver files required for our service to operate such as javascript, cascading style sheets, images, and videos. (Privacy Policy)
      Google Hosted LibrariesJavascript software libraries such as jQuery are loaded at endpoints on the googleapis.com or gstatic.com domains, for performance and efficiency reasons. (Privacy Policy)
      Features
      Google Custom SearchThis is feature allows you to search the site. (Privacy Policy)
      Google MapsSome articles have Google Maps embedded in them. (Privacy Policy)
      Google ChartsThis is used to display charts and graphs on articles and the author center. (Privacy Policy)
      Google AdSense Host APIThis service allows you to sign up for or associate a Google AdSense account with HubPages, so that you can earn money from ads on your articles. No data is shared unless you engage with this feature. (Privacy Policy)
      Google YouTubeSome articles have YouTube videos embedded in them. (Privacy Policy)
      VimeoSome articles have Vimeo videos embedded in them. (Privacy Policy)
      PaypalThis is used for a registered author who enrolls in the HubPages Earnings program and requests to be paid via PayPal. No data is shared with Paypal unless you engage with this feature. (Privacy Policy)
      Facebook LoginYou can use this to streamline signing up for, or signing in to your Hubpages account. No data is shared with Facebook unless you engage with this feature. (Privacy Policy)
      MavenThis supports the Maven widget and search functionality. (Privacy Policy)
      Marketing
      Google AdSenseThis is an ad network. (Privacy Policy)
      Google DoubleClickGoogle provides ad serving technology and runs an ad network. (Privacy Policy)
      Index ExchangeThis is an ad network. (Privacy Policy)
      SovrnThis is an ad network. (Privacy Policy)
      Facebook AdsThis is an ad network. (Privacy Policy)
      Amazon Unified Ad MarketplaceThis is an ad network. (Privacy Policy)
      AppNexusThis is an ad network. (Privacy Policy)
      OpenxThis is an ad network. (Privacy Policy)
      Rubicon ProjectThis is an ad network. (Privacy Policy)
      TripleLiftThis is an ad network. (Privacy Policy)
      Say MediaWe partner with Say Media to deliver ad campaigns on our sites. (Privacy Policy)
      Remarketing PixelsWe may use remarketing pixels from advertising networks such as Google AdWords, Bing Ads, and Facebook in order to advertise the HubPages Service to people that have visited our sites.
      Conversion Tracking PixelsWe may use conversion tracking pixels from advertising networks such as Google AdWords, Bing Ads, and Facebook in order to identify when an advertisement has successfully resulted in the desired action, such as signing up for the HubPages Service or publishing an article on the HubPages Service.
      Statistics
      Author Google AnalyticsThis is used to provide traffic data and reports to the authors of articles on the HubPages Service. (Privacy Policy)
      ComscoreComScore is a media measurement and analytics company providing marketing data and analytics to enterprises, media and advertising agencies, and publishers. Non-consent will result in ComScore only processing obfuscated personal data. (Privacy Policy)
      Amazon Tracking PixelSome articles display amazon products as part of the Amazon Affiliate program, this pixel provides traffic statistics for those products (Privacy Policy)
      ClickscoThis is a data management platform studying reader behavior (Privacy Policy)