Unequal Enforcement of Rules - Has anyone every successfully litigated this and won?

Tevin - This is part of what you wrote:
"All of a sudden my board is requiring me to:
1) Submit building plans (not in the CC&R's)
2) Requiring a licensed contractors (Not in the CC&R's)
3) The TYPE must be exactly the same. (the size is 3 inches off but nothing some molding can't cover, the molding is 4 inches wide)
4) The SIZE must be exactly the same."

My response: These appear to be rules and regulations the Architectural Control Committee use. Have you discussed anything with your Board? I would suggest contacting them and discussing this with them. You may be able to work it out instead of trying to sue them. What amount of money are you talking about? Have you put the windows in? Since there are only 10 units contact the other unit owners and let them know what is going on and try to get their support. Ask the Board for a hearing. Check your CC&R's on how to request a hearing. Or, do as they ask and forget it.

I think you need the Board to explain their actions. Talk with them before deciding to sue. A Board is very difficult to sue especially for harassment. Harassment is very difficult to prove. And again it comes down to how much money you wish to spend, because the Board doesn't care as it isn't their money.

The more information you can get from them will help you in your decision to pursue suit. Good luck.

Tevin - Is it possible that there could be some future liability for the association in permitting this type of work to be done by an unlicensed contractor, should problems develop with the windows down the line? Also,is this a townhouse community where the HOA bears maintenance responsibility?

Tevin...on point, yes the HOA opens itself up to liability if it does selective enforcement. I don't have any case law to point to but am sure there are cases that have been successfully won. I will also say that getting into litigation is a no win proposition.

I can't help but think there is something else going on here. But with what you have provided and if I were in your shoes this is what I would do.

1)I would submit a building plan as asked
2)I would ask that in lieu of hiring a licensed contractor that you be allowed to do the work and give your resume. Now, that is assuming this is a single family home, if it is not and the association owns the property and or is responsible for building maintenance you may lose this.
3)I would point out the other 5 homeonwers who did their own work and also point out that you installed one of them and ask them that they give you the same.

In the end if they say no you have a crossroads...i personally wouldn't sue myself, it just really isn't worth it.

There is a state penalty for unlicensed contractors doing work for which a license is required and the HOA liability insurance will likely not cover such work or lawsuits arising from such work.

Hi Nancy, and thanks for your response... We do NOT have an architectural committee, and many of these windows just do not match what is there, which is why I'm perplexed. I have petitioned for an emergency meeting,(They do not have to agree to this). If they do not agree to the emergency meeting then I will petition for a Special meeting which the HOA HAS to grant me and set a date within 20 days, but the actual meeting does not have to take place for up to 90 days. In the mean time my door is hanging open and luckily it is on a private patio. So there is some protection there.

Carol, It is an "own-Your-Own". Its not really a Condo and it is not a Townhouse. We were considering converting to an actual Condo but none of the homeowners have the money to pay the attorney to convert it over to a condo. If it is converted to a Condo then we would gain about 50K to 75K in value. These are very hard to finance.

If a problem develops down the line then I will need to fix it, as simple as that. but I am very confident in my 12yrs of construction experience. The HOA only maintains the "common areas" they do not bear responsibility in private units.

Thanks Brad... 1.) I will submit plans (I draw all of my own plans for all my projects), 2.) I will definitely submit a Resume and pictures of previous projects, 3.) I will bring this up.

I will need to do all of these in court, the last time I tried to make a deal out of court, they took my entire deal and basically used it against me. I will bring them into court and have a judge or a mediator agree to the terms. Then if they back out, they will have their backs against the wall.

Glen, you are correct, they can claim this, but that is exactly how I won my last case against an HOA before. They claimed "that they are enforcing the rules "NOW"' and basically it fell apart in court and they ended up settling the case. I still had to pay my own legal fees but in the end my house is still there.

Personally, I don't see anything wrong with submitting a plan - it's a good way to ensure the window will fit in with the overall look and design of the community. As others have said, the licensed contractor requirement may be necessary for master insurance reasons, but with your background, it seems to me they might make an exception - or at least ask for some sort of waiver or release where you agree to pay for any damage that may result of the window fails (not saying it will, but that would protect the Association and you could put in what you want

I also agree that there seems to be more to this story that what you're saying (something happened between the board member accusing you of vandalizing the building and the police pointing a gun at you). And if you recently revisited the property and the police were waiting for you (how do you know that, by the way?), something must have happened to warrant them to come to the community.

It's time for you and the Board (at least one of them) to calm down. Since you don't want to sue the other homeowners, I suggest you propose alternative dispute resolution. The set up varies from state to state, but generally a third party listens to both sides and then works out an agreement or both sides agree in advance to abide by whatever decisoin the third party makes. There may be a cost involved, but it's a lot cheaper than going to court. You said the owners in the HOA are broke, so what's the point of suing when you may not ever get the money?

Well, I have to say you all are pretty intuitive... yes I think that there is something, and I did not want to actually turn this into a racial discussion, but yes I'm African American and the last suit that was settled after 9 months of pointless mediation and negotiations got us absolutely nowhere. I eventually filed a case with the Federal Government, and the government filed a fair housing suit, and it was settled rather quickly. I was really trying to avoid that this time because just the investigation cost the HOA 9K. It is really the owners that get punished not the HOA.

I hate to say this, but when you are Black some things are just harder to get done. You never know what peoples motivations are, you just have to draw a line in the sand and stand up for what your property rights are.

Nancy the property is an Own-Your-Own or OYO. It's very weird, but the difference between a traditional OYO an our OYO is that we hold title to our property. In a traditional OYO you do not actually hold title to your property, the Corporation owns the title and leases the unit to the owner and gives the owner exclusive use of the property. We actually own our units and pay individual utilities and property taxes.
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To be quite honest, I assumed that you were black from the get-go from your name. I believe that this forum is pretty color blind when it comes to giving advice, believe me I've seen people go out of their way trying to help posters where it was obvious that their first language was not English. My personal bugaboo here is I hate bully's whether they be an overreaching Board or a homeowner who thinks they are above the rules.

Now as I said before we only get your side of the story, so it may be some type of prejudice from the Board or from you. Yes prejudice happens to and is practiced by all races and religions. You may be 110% right but at some point you have to ask yourself if this is worth it. What my momma used to call: "Cutting of your nose to spite your face."

One more before I call it a night, nowhere in our CC&R's does it require the work to be done by a licensed professional, so if your CC&R's are likewise silent about that, then the Board is overreaching on that count.

You also wrote that you installed one of the owner's windows. Not being a licensed contractor isn't something to be proud of.

It only makes people wonder why not. I've seen a lot of owner work and repairs in rentals and the repairs were questionable.

I am going to weigh in on this. Although agree with Brad's advice. Going to court is a BAD idea. My tried and true advice still stands: Suing your HOA is suing yourself and your neighbors. Something you need to consider as it's not just your legal bills your paying or forcing others to pay.

The false arrest thing just doesn't hold water. If I as a board member saw someone at a home that is NOT theirs messing with a window that I knew was NOT covered any known approval process, I'd call the police too. The approval should have been discussed with ALL the board members and approved. Even if it was verbally done by the President, it doesn't mean it is approved by the board. Plus NEVER EVER do a verbal agreement as they are difficult to prove in court. The police tasering or pointing a gun at you was a direct result of YOUR actions. I don't know why you did not identify yourself as a homeowner and show your license to the officer. Instead it escalated to a police altercation which I can only truly blame on you. You get back what you put out with the police. Plus the member had every right to call the police as you were vandalizing the property until it was approved. Against the law by the way...

There is a BIG issue when retrofitting original equipment. I know as I have worked as a handyman myself and built over 26 homes. So I know construction. If the original materials is no longer available, that needs to be addressed by the entire HOA for the future of ALL owners. We had light fixtures that no longer were supplied. They tended to get destroyed by various means over the years. We had to then go and find a suitable replacement for ALL the owners who were needing to replace theirs. That way we had a standard and easier to approve the change. Otherwise we had the right to remove the lightpost at the owner's cost.

It is a requirement for us to have ONLY licensed and insured contractors to work on HOA property. That is to protect ourselves and the owners. Having this as a requirement when you are working on OTHER homes is a good idea. You could do your own home after approval but NOT others. Same as my Electrian work. I can redo the electrical on my house all day long...but If I did my neighbors, I'd better be licensed and insured. It's just best for all involved.

Your ACC can be different from your Board. The board may have final say or override the ACC but the ACC can have it's own set of rules. Most do. So they have every right to investigate all the factors of your retrofitting idea before it is approved. The other owners opinions and needs count too. So just 5 can go to the meeting and request the change but have to respect the majority.

Suing isn't going to get you anywhere or crying discrimination. It just makes you look like an angry black man out to get yours. I am a woman so I KNOW discrimination myself. I'd rather work with my HOA and be someone who's willing to be part of the system than against it. You will go farther and not upset the customers you may already have. They may not hire you if you sue the HOA and they have to pay more dues...

Tevin,

It sounds like you have a pretty good case. Five out of ten owners replace their windows without a problem but when the only black guy tries it a board member has him arrested. For what? Felonious Blackness?

There are several different elements to your situation that I find bothersome.

First and foremost is that someone has summoned the police at least twice and that the police actually arrested you at least once. If you were in Arizona I would recommend filing criminal harassment charges. One element of the crime is repeated groundless calls to law enforcement agencies. (ARS 13-2921(A)(5).) Do some research and see if there is a similar statute in California.

It is not clear to me from your first post whether it just a single board member acting like a jerk or if the entire board has taken his position. Are the four owners who have not replaced their windows all board members?

Once again, if you were in Arizona I would point you toward the local justice court or municipal court and suggest that you file an application for an Injunction to Prohibit Harassment. (ARS 12-1809) These are issued and served at no charge. The injunction is usually issued without a hearing, which the Defendant may seek later. Even if you are violating the restrictions on your property, having you arrested when no crime has been committed would usually be sufficient evidence of harassment. Check with your local municipal court to see what similar relief might be available to you.

My gut instinct is that if and when the board member who is causing you the most grief is served with some sort of protective order, the rest of the board members will back off. But that is just a guess.

If there are racial overtones to this situation, I would recommend a trip to your local housing authority office to see what assistance they may be able to give you. You may be able to get a public agency to take up your case at no charge, although it is more likely that they will investigate and then give you a letter that says you have their permission to sue. Even so, the board is going to have to explain why five owners replace windows without a hassle but when you do the same thing you get grief.

BTW, I recently found out that there is legally recognized claim for selective enforcement or selective prosecution. The case where I found it had only a short discussion of the elements but the minimum seems to be that one person is singled out when many others have done the same thing AND there is an element of personal animosity between the accuser and the accused.

Melissa - You said "Going to court is a BAD idea." Sorry, but I disagree with you. Sometimes it is necessary to sue the Assn. It depends on amount of money involved and the reason you have to sue. Besides the Assns have insurance to cover the cost. The Assn may have to pay a deductible if amount sued for is large. For minor small claims suits it just cost them time unless they lose and they would have to pay the Plaintiff. I've been on both sides. In Tevins case it depends on the amount of money involved.

Melissa - If the Board is out of line and causes damage to your property then yes I think you should sue them. When the Board does not go by the Covenants or State Laws or local laws, yes I agree you should sue them. When you can't get the Board changed due to proxies what choice do you have. It's a bad Board and they think they can do whatever they want to your property. Wrong. They don't care how much money they spend of the homeowners for things that should not come out of the tresuary. This is not all Boards, but there are quite a few out there. One of them happens to be one I am dealing with. Your Board must be one of the good ones. Then you will never be sued. Lets not make this an issue, Tevin has his own problems.

Brad I agree. Anybody should try to work with their Board first before taking court action.

I will look into "Criminal Harassment"... I will look at taking this action separate from the door plans. I still can't believe that I was actually in the back of the Police car for 45min to 50min. Once my hands started loosing circulation, and my arms and legs started to cramp then I started to demand my release or take me to jail, I was finally released "45min". I spoke to an attorney about getting a court order to allow me to enter. All of the Attorneys that I have spoken to say that this is "unprecedented". I think that if any Police officer will not let me in after a court order... WOW, we will have a huge problem!!! WOW!!


Well at first it was just 2 board members and now the 3rd who is actually a moderate has basically told me "just to keep the peace don't come around". I respect the moderate board member to a point, but he is still asking me don't come to property that I own. I believe in resolving issues, I don't believe into going into hiding, problems tend to always come back and bite you. So I am of the mindset that I need to resolve this now and not "just Hide".


No, only 1 has replaced his windows.


I actually agree with you. I think I will actually work on this, one on particular is very very hostile to me. I will see what the cost is.


This is tricky... I did take this route in my previous lawsuit and it worked very well, the state takes this stuff very seriously.


This is actually why I came here. I have heard that also, but I don't know if anyone has actually been successful in litigating this. In my experience and my research, the Courts give the HOA's a lot of power in enforcing the rules. Where the case is won or fought is the "selective enforcement" argument.

First, I will give them the plans. 2nd I think I will explore the harassment stuff so that I can gain access. Selective enforcement seems like such a High burden to prove.

Thanks again Larry

Melissa, you are right... but this is the reason HOA's need to be fair in their dealings. Arbitrary and capriciously enforcing rules is a bad idea and opens the HOA up for this type of action. Its better to come together and work these things out.

Well Said Brad!!

I think this is a great first step...i would come with plans, I would also have a reference to local and state laws as it pertains to licensed contractors and if you need one on your own property.