HOA Selective Enforcement

What is Selective Enforcement

Selective enforcement involves enforcing some rules more strictly than others or targeting specific homeowners while ignoring others’ violations. This can lead to a sense of unfairness or inequity and ultimately undermine homeowners’ trust and confidence in their HOA.

Enforcement Overview

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.

Community governing documents should include procedures for enforcing rules and restrictions that apply equally to all members. Governing documents granting authority to discipline members are crucial for the Board to effectively 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.

Enforcement Procedures

There are several ways HOA Boards can choose to manage the enforcement process:

1) The association will investigate, verify, and act on a rules violation only upon receiving a formal written complaint from a member.

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. The HOA board is responsible for ensuring that rules and regulations are enforced fairly and consistently across the community. 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. Failing to enforce rules consistently could lead to a lawsuit for ‘selective enforcement’ against the association and management.

Board members should avoid hasty decisions on violations and enforcement, first reviewing the situation and evaluating the facts collectively. 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:

• Set an example and follow the rules as a member of the association and Board representative.
• Exercise due diligence by gathering facts and evidence of alleged violations and reviewing all details before deciding on enforcement actions.
• Treat all members with the same respect and dignity when corresponding and interacting with members regarding violations.
• Appoint a few Board members to meet with the violating member(s) in good faith, aiming to resolve the situation amicably.

The Board of Directors must determine if a violation exists and decide the appropriate action to ensure compliance. If all enforcement efforts fail, the association’s attorney may need to advise the Board on the next steps.

Finally, it is important to remember that selective enforcement is not just a legal issue but also a moral one. Homeowners who feel unfairly targeted may resist complying with HOA rules, potentially leading to more significant issues later on. Prioritizing fairness and consistency in HOA enforcement fosters trust and cooperation among homeowners, ultimately creating a stronger, more vibrant community.