Selective Enforcement In HOA: What Can Homeowners Do?

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Selective enforcement in HOA communities is a big problem that associations must deal with. It can sow discord among community members and be a liability risk for the HOA. The board members and residents must know its pitfalls and how to prevent them. 

What Is Selective Enforcement in HOA?

Every homeowners association comes with a set of governing documents. The Declaration of Covenants, Conditions, and Restrictions (CC&Rs), in particular, outlines the community’s standards and rules for residents. It includes rules such as rent restrictions, architectural standards, and maintenance duties. 

Part of the board’s duties is to enforce the rules when someone refuses or fails to comply. They may issue a warning, a fine, or suspend the person’s rights and privileges. However, HOA selective enforcement happens when the board enforces the rules against one homeowner but not another. 

It also applies to instances wherein the rules are enforced against a group of homeowners but not against the rest of the residents. Moreover, selective enforcement may happen if the board suddenly enforces a rule that it did not in the past. These are cases of selective enforcement as they are inconsistent and unfair. 

Is HOA Selective Enforcement Illegal?

Homeowners associations must not enforce their rules capriciously or arbitrarily. This means that selective enforcement of HOA rules is illegal, as they must implement the rules fairly and consistently. 

In some states, the law will explicitly require associations to enforce the rules fairly among homeowners. However, the obligation of consistent enforcement is usually implied even if state law is silent. The governing documents may also address HOA inconsistent enforcement and require the board to enforce the rules uniformly. 

If a homeowners association inconsistently enforces the rules, it risks waiving its right to enforce those rules moving forward. In other words, the rule may become unenforceable within the community. 

Why Does Selective Enforcement Happen?

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Many cases of selective enforcement happen due to neglect. For example, some homeowners associations only enforce the rules when violations are reported. 

If nobody reports the violation, it will go unnoticed and unpunished. This usually happens when an association is large and does not have the resources or manpower to conduct routine inspections. 

Apart from this, some communities may have board members that are too lenient. A newly elected board may start enforcing rules the previous board did not, resulting in perceived selective enforcement in HOA communities. 

On the other hand, there are certain instances wherein the board inconsistently enforces the rules on purpose. For example, they might apply specific architectural rules to one homeowner but not their property. They might also show favoritism to friends or use selective enforcement as retaliation against a homeowner they’re at odds with. 

Whether intentional or not, selective enforcement is wrong. Homeowners associations should investigate potential cases to avoid liability and keep the community harmonious. 

What to Do About Selective Enforcement

What should homeowners do in the face of selective enforcement in HOA communities? Should they file a selective enforcement lawsuit right away? What steps should be taken to ensure consistent enforcement?

1. Consult the Governing Documents

The first thing homeowners must do is consult the governing documents. It’s essential to verify whether the enforcement is indeed unfair. Otherwise, the homeowner may not have a real case to plead. 

For example, the HOA may prevent a homeowner from renting their home as an Airbnb despite the governing documents allowing rentals. 

However, the homeowner cannot plead selective enforcement if the governing documents specifically allow only long-term rentals. The HOA is acting within its authority to prohibit short-term rental units. 

2. Approach the Board

If the enforcement action was selective, the next step should be to speak with the HOA board. The CC&Rs may indicate how homeowners can complain in case of selective enforcement. However, if they are silent, it may be best to raise the concern in writing simply.

Alternatively, the homeowner may attend a board meeting and raise concerns. The resident may also check the governing documents to see whether they can call a meeting and how to do so. 

Approaching the board directly is often enough to resolve the issue. This allows the homeowner and the association to avoid financial losses and the complications of going through an HOA selective enforcement lawsuit.

3. Take It to Court

If the board refuses to rectify the issue, the homeowner may sue the HOA for selective enforcement. However, this will be a long and costly affair. Homeowners must be able to provide evidence that the HOA selectively enforced the rules despite frequent violations in other instances. 

How to Prove Selective Enforcement

Homeowners must provide a defense before they plead selective enforcement before the board. Naturally, they must offer convincing proof to the board or the court. Here are some ways you can prove that the HOA is inconsistent with violations:

  • Photos and Videos. Document the incident by taking a photo or video of the violation, not being penalized. 
  • Write Down the Details. Note the date, time, and place where the rule was not enforced.
  • Get Witnesses. Ask your neighbors or witnesses to testify and provide statements of the violations. 
  • Request Information. Formally request the board to obtain information about certain enforcement actions, such as violation notices, enforcement correspondence, and fines issued. 

How to Prevent Selective Enforcement

Homeowners associations are meant to keep property values high and ensure residents have a wonderful living environment. Selective enforcement cases can wrench the HOA’s plans and disturb the peace. The best way to avoid these issues is to take preventive measures. Here are some things you can do as a community to prevent selective enforcement. 

1. Conduct Frequent Inspections

It may be costly, but homeowners’ associations should conduct regular inspections of community violations. This ensures that all properties meet the community’s architectural standards and prevents anyone from claiming preferential treatment. 

2. Define the Rules

The community’s CC&Rs, Bylaws, and regulations must be well-defined and easily understood. This will keep everyone from misunderstanding a rule and doing something that violates it. It also helps the board enforce the rules more consistently. 

3. Adopt a Fair Procedure

Homeowners associations must adopt an organized and fair procedure to enforce the rules. The board must memorize the community rules to ensure everything runs smoothly. Moreover, they should immediately penalize any violation they encounter. 

The steps for enforcement should also be clearly outlined in the community’s governing documents. For example, it should clearly state when citations will be issued for certain violations. It may also be helpful to adopt a fine schedule so homeowners know the penalties.

The board should provide documented evidence of the violation and the notice. The board should also standardize its communication with the homeowners so nobody can claim they’re playing favorites. 

4. Enforce Uniformly

Some board members may feel that minor infractions are too small to penalize. However, ignoring the violation is never a good idea. The board should follow its violation procedure even if enforcement takes time, money, and effort.

5. Enforce Promptly

The board must promptly address every violation. This will help the community understand that the rules must be taken seriously and reinforce the board’s message of consistent rule enforcement. 

6. Listen to Complaints

Homeowners associations can prevent enforcement issues from escalating into lawsuits by simply hearing the residents out. Consider offering a formal way to submit complaints and listen to the residents first. This will help the board handle matters internally and make the homeowners feel heard. 

How to Defend Against Selective Enforcement Claims

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Despite implementing preventive measures, homeowners may still file lawsuits against the HOA. The board must be prepared to handle these issues when they arise. Here are some ways the board can build a good defense against a lawsuit. 

Firstly, all documentation and other evidence of violation enforcement must be kept. Prepare a reasonable explanation behind enforcement actions and why they were taken by the board. This can help the HOA defend itself in court.

Secondly, the board must ensure that the CC&Rs are clear and well-written. The rules must be concise and straightforward, and vague language that might be misinterpreted by the homeowners must be avoided. The CC&Rs must also delineate the consequences of rule violations.

Finally, take photos or video documentation of the violations as they occur. This will bolster the board’s case and prove that a breach did happen. 

The Final Word

Selective enforcement in HOA communities can be detrimental to the neighborhood overall. It affects homeowner relationships and can even lead to lengthy and costly litigation. HOAs should adopt standard procedures and ensure that the rules are enforced fairly and consistently. 

Does your community need help with consistent rule enforcement? Personalized Property Management is your best bet. We serve communities all across Southern California. Call us today at 760-325-9500 or contact us online for more details!