HOA Selective Enforcement
What is Selective Enforcement
Put simply, selective enforcement refers to the practice of enforcing certain rules or regulations more strictly than others, or of selectively enforcing rules against certain homeowners while overlooking violations by others. This can lead to a sense of unfairness or inequity, and can ultimately undermine the trust and confidence that homeowners have in their HOA.
Owners purchase properties within homeowners’ associations under the expectation that the governing document provisions are being fairly and consistently enforced with all members alike. One of the Board’s primary responsibilities is enforcing the association’s governing documents. Keep in mind that if an HOA is inconsistent in its enforcement of specific rules, in the eyes of the law, it may have waived its right to enforce the rule in the future.
The governing documents for each community should include provisions outlining the procedures for enforcing the governing documents, rules, and restrictions that apply to all members. In addition, the governing documents providing the authority to discipline members are vital to the Board's ability to fulfill its enforcement responsibilities. It is recommended that the Board of Directors establishes and adopts rules/guidelines for all members to abide by and an ‘enforcement policy’ outlining what actions the Board may take to gain compliance.
There are several ways HOA Boards can choose to manage the enforcement process:
1) Only upon receiving a formal written complaint from a member will a rules violation be investigated, verified, and acted upon by the association.
2) A designated Board or Committee member(s) performs their own periodic reviews of the community and provide written reports of violations to management, and letters are sent out requesting compliance.
3) The Board instructs the Community Manager or other designated representative to perform routine inspections of the community and record the violations, then send letters requesting compliance. It is recommended that photo documentation be included in the compliance letter.
All methods described are acceptable if the process is administered fairly and all actions taken strictly adhere to the association’s adopted enforcement policy.
The Role of the Board
Another important consideration when it comes to selective enforcement is the role of the board of directors. As the governing body of the HOA, the board has a responsibility to ensure that rules and regulations are enforced fairly and consistently. To do this effectively, board members must be knowledgeable about the rules and regulations, as well as the processes and procedures for identifying and addressing violations.
The Board actions should not be viewed as “arbitrary and capricious” in nature when administering the association’s policies. By not doing so could cause a member to file a lawsuit against the association and management company, accusing both of ‘selective enforcement.’
Board members should not react or make hasty decisions about the violation and enforcement matters without first reviewing the situation as a Board and evaluating the facts and evidence. The Community Manager can assist the Board with the investigation and gathering information for the Board to review (photos, witness statements, etc.).
The Board members can prevent an accusation of selective enforcement resulting in a potential lawsuit by following these steps:
1) Set an example and follow the rules as a member of the association and Board representative.
2) Use due diligence by gathering facts and evidence of alleged violations and thoroughly reviewing all matters prior to deciding on enforcement actions.
3) Treat all members with the same respect and dignity when corresponding and interacting with members regarding violations.
4) Try to resolve matters by appointing a few Board members to meet with the violating member(s) in a good faith effort to try and resolve the situation amicably.
Ultimately, it is the Board of Directors who are responsible for determining if a specific violation exists and what action should be taken to gain compliance from the member. The association’s attorney may need to advise Boards on the next steps if the association has exhausted all steps available in the enforcement policy and the member still has not complied.
Finally, it is important to remember that selective enforcement is not just a legal issue, but also a moral one. Homeowners who feel that they are being unfairly targeted or treated may be less likely to comply with HOA rules and regulations, which can ultimately lead to more serious problems down the road. By prioritizing fairness and consistency in their enforcement efforts, HOAs can foster a sense of trust and cooperation among homeowners, and can ultimately help to create a stronger, more vibrant community for everyone.