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Unequal Enforcement of Rules

Started by CarolR11 • 13 replies • 6108 views

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CarolR11 (Colorado)
Posts: 2,563
Posted:
I'm a director on a 7-member Board. In the past few months, some directors have shown a tendency to not want "courtesy letters" (1st warnings) sent to certain violators, or to fine them if they are called to a hearing for repeat violations. These directors are eager, however, to send such letters to other violators of the same rules. The latter tend to be renters rather than homeowners.

We do have an otherwise excellent PM who sends the letters, but seems similarly reluctant to send letters to certain violators.

At our next executive session (because it is a personnel matter), I'd like to point out that all violators should be treated equally. To engage in unequal treatment not only is unjust, it can lead to a homeowner taking legal action against us. We directors should be protecting our HOA's assets, not putting them at risk.

I've read somewhere that unequal treatment of violators is a major source of lawsuits against HOAs, but can't remember where. Is it true??

(I should add that none of the violators in question are directors nor friends [nor enemies] of any directors. Our Rules & Regs., clearly spell out the steps that are taken in case of violations, and all comply with our CC&Rs & Calif. Civil Code.)
TimB4 (Tennessee)
Posts: 21,062
Posted:
Carol,

A board should follow their enforcement policy when enforcing any violation, irregardless of whom the violator is.

Here is a link to the enforcement menu page of the davis-stirling.com web site. It may be of help.

Tim
MelissaP1 (Alabama)
Posts: 13,836
Posted:
The HOA doesn't need to send letters of violations to RENTERs. They send the violation letters to the OWNERS. That is one of the mistakes. The HOA can only hold the owner's feet to the ground NOT the renters. Keep in mind there are also "Tenant laws" so the owner's hands can be tied a bit when trying to evict. (It took me 5 months to legally evict my tenant).

Make sure your HOA has an established fining schedule and it is distributed. The board can't arbritarily decide to fine $25 for not bringing a garbage can in. There has to be established schedule of fines and maximum amounts. Keep in mind fines work as "Speeding tickets" for the HOA. They are NOT money making oportunities but corrective actions.

Finally, it's good to note that fines can NOT be the basis of liens/foreclosures. This is especially true if your HOA doesn't have a fining schedule set up. It's most likely a waste of time to even bring violators to court in small claims by suing. A court judgement isn't as strong as a lien and the violator can simply sell their home and never pay...Just to keep some issues in mind when addressing fining.
Former HOA President
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Carol

The managemant company works for the BOD, of which you are a member. The problem of different treatment lies within the BOD.

As Melissa said, the letter should go to the owner. Personally, I would send a copy to the renter in hopes that maybe the renter will clear the issue up on their own.

The owner is the one ultimately responsible for their renters.

CarolR11 (Colorado)
Posts: 2,563
Posted:
Sorry I wasn't clearer. The letters certainly DO go to the HO's. A copy is delivered to the tenant.

We certainly DO have a fine schedule, etc.

Thanks for the D-S enforcement site, Tim. I did check there.

My question was and is: Does anyone know how common it is for HO's to sue HOA's for unequal enforcement? I need to convince the Board that we must practice equal enforcement.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
People can sue for anything and anytime. STOP worrying about every little threat of lawsuit. It is better for a HOA to counter sue than to bring suit. Plus you have to consider IF you sue your HOA your suing yourself and your neighbors...Not a profitable making venture...

A HOA should always try it's best to equalize violation correction. However, reality is that it's impossible to do. Just concentrate your best efforts on making sure the violations you do enforce are within the rules. That is all you hope for and just wait to see if anyone actually follows through with the lawsuit paperwork...My experience out of ALL the almost daily threats of lawsuits for 3 years we NEVER got 1 suit...
Former HOA President
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Quote:
Posted By MelissaP1 on 04/30/2012 1:55 PM
People can sue for anything and anytime. STOP worrying about every little threat of lawsuit. It is better for a HOA to counter sue than to bring suit. Plus you have to consider IF you sue your HOA your suing yourself and your neighbors...Not a profitable making venture...

A HOA should always try it's best to equalize violation correction. However, reality is that it's impossible to do. Just concentrate your best efforts on making sure the violations you do enforce are within the rules. That is all you hope for and just wait to see if anyone actually follows through with the lawsuit paperwork...My experience out of ALL the almost daily threats of lawsuits for 3 years we NEVER got 1 suit...

I agree with Melissa.

Every time in life someone said to me I am going to sue you, I replied that is your right and if so then I will see you in court. Have a lovely day.
CarolR11 (Colorado)
Posts: 2,563
Posted:
No one is threatening to sue us. I'm simply wondering suits for unequal enforcement are common.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
I am sure threats of unequal enforcement is indeed popular. Like I stated before DO NOT base decisions based on what "could" be sued for. Make the decisions the best one for that situation. People claim unequal enforcement ALL the time. If you do your best NOT to be unequal then your ahead of the game...o perfect solution for every situation...Your going to be threatened to be sued for this so get used to it...
Former HOA President
JeffR7 (California)
Posts: 251
Posted:
Carol, there is probably a very slim chance that anyone will sue you for it. It's possible, but not likely. A bigger issue, from my point of view, is that if you ever decide to sue someone they'll have a great defense against your suit.
CarolR11 (Colorado)
Posts: 2,563
Posted:
The Association is NOT threatening to sue anyone. No HO is threatening to sue our HOA.

Violation ("courtesy") letters are going to some owners, but not to others, for the exact same, corroborated (more than one witness) violation.

Those who get these letters tend to be HOs who have tenants. Those who do not get letters generally are owner-occupants.

HOW do I convince the Board to treat all HO's equally? THAT is my question, which I apparently failed miserably to convey.

Melissa, I've been on the Board for 5-1/2 years (200+ high rise condos) and have worked hard to be well-informed about our gov. docs and relevant state civil & corps. codes. I think that my efforts have helped keep even the threats of lawsuits at bay though that's not the reason for my learning various materials.

During that time, there's been no threat or actual lawsuit against our HOA. So, a threat of lawsuit, which had nothing to do with my OP, isn't something that concerns me at all EXCEPT until the board--quite recently--began showing partiality & favoritism.
TimB4 (Tennessee)
Posts: 21,062
Posted:
Quote:
Posted By CarolR11 on 05/01/2012 5:28 PM

HOW do I convince the Board to treat all HO's equally? THAT is my question, which I apparently failed miserably to convey.

Carol,

To be honest, the only risk for not following a written enforcement policy or applying the policy differently to one member over another is a higher possibility of losing a legal challenge to an enforcement action. If the board members do not believe there is a risk of legal challenges, then I doubt you will be able to fully convince them.

Expecting that your Association has a written enforcement policy in place, you might try explaining that failing to follow the policy as written may place the Association at risk of litigation. You might also try appealing to the Boards sense of ethics. You actually said it best when you posted:

At our next executive session (because it is a personnel matter), I'd like to point out that all violators should be treated equally. To engage in unequal treatment not only is unjust, it can lead to a homeowner taking legal action against us. We directors should be protecting our HOA's assets, not putting them at risk.

If your Association doesn't have a written enforcement policy, then volunteer to draft one (or just draft one and propose it) as a way to clear up the confusion.

As for your initial question on what is the highest complaints, surveys tend to vary. I couldn't find many sites that include how the list was created. However, many sites used a report from Colorado.

http://www.cohoalaw.com/from-capitol-hilllegislation-synopsis-of-data-on-hoa-complaints-to-the-hoa-information-office.html (law firm blog citing Colorado stats)

In that report they have the following list:

The complaints ranked as follows:

• 17 percent: records and transparency issues;
• 14 percent: boards/management companies failing to follow governing documents;
• 13 percent: boards/management companies not addressing or listening to homeowner concerns;
• 12 percent: boards/management companies not performing maintenance; and
• 11 percent: homeowner harassment.

I suppose that failing to follow governing documents and homeowner harassment include enforcement issues.

Most of the complaints I've seen within this forum that deal with violation enforcement include a perception that the Association was singling them out vs. enforcing the rule equally.

Hope this helps,

Tim
LarryB13 (Arizona)
Posts: 4,099
Posted:
Quote:
Posted By CarolR11 on 04/30/2012 4:56 PM
No one is threatening to sue us. I'm simply wondering suits for unequal enforcement are common.

Not common at all for several big reasons:

First, any sort of discrimination is very difficult to prove. Unless the plaintiff can produce a smoking gun its pretty much he-said/she-said. Most attorneys would recommend against taking such a case to court.

Second, the very nature of complaining about unequal enforcement requires the plaintiff to admit that he did violate the rules. He has to admit that he put pink flamingos in his front yard in violation of the rules and then argue that others have them and they don't get hassled.

Finally, most CC&R's leave enforcement to the discretion of the association. There is usually no duty to enforce every violation against every person. This is much the same way that the highway patrol can pull over one car for speeding while 100 others whiz by. Both the highway patrol and the HOA get to pick and choose their battles.

CarolR11 (Colorado)
Posts: 2,563
Posted:
Thanks, Tim, for the fine list! I do think that bullets 2 & 5 apply to this issue. And, yes, we do have a clearly written enforcement policy.

Also appreciate your reply, Larry.

I just need to do my best to convince those on the board who seem to want to look the other way concerning certain kinds of owners that we must be fair. And that we must follow our governing docs.

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