Mike-Legal Question CCR Violation

Sorry, I meant Tim. I guess I was still thinking about the meetings in swim attire and how living in the Bible belt as I do has its disadvantages!

As a reminder, I am not an attorney. I do not work in the legal profession. I am offering advice based on personal experiences, any research I may have done, the information contained in your post and, hopefully, some common sense.

This would be called selective enforcement and any Board/Association that uses it runs the risk of having issues if the enforcement action is challenged in court.

As I see it, using a selective enforcement defense, if a court could believes it occurred they could rule in one of the following ways:

If the Board and/or court believes that their is selective enforcement then one or more of following things will happen:

1) The violator will be found in violation of the rules and have to pay fine and/or comply with the rule.

2) The violator will be found in violation of the rules, will need to come into compliance and the Board must enforce the same rule on all existing violators (expecting you had proof of the other violations to show selective enforcement).

3) The Board, by failing to enforce equally on everyone, may no longer enforce on anyone.

Here is more info on that issue:

PAYNE v. CUDJOE GARDENS PROPERTY OWNERS ASS'N, INC. Case involving Selective Enforcement
Avoiding HOA Rule Selective Enforcement Claims 2012 CAI Article
COVENANT ENFORCEMENT-SELECTIVE ENFORCEMENT CAN BE A KILLER 2004 article by Taylor & Carls, P.A
Selective Enforcement Challenge for Homeowner Associations 2012 article on HOA Management Blog


Typically the CC&Rs are written so the developer controls the votes even with though they may own only a few lots. The CC&Rs may be amended if there are enough votes to do so. Many Associations amend the CC&Rs within 5 years of having control transfer to the membership. Perhaps for just this purpose.

As far as a court ordering them to be voided because they are an onerous burden, I don't know. I haven't heard of any cases where this has happened but that doesn't mean it can't.

I have heard of the membership petitioning the court for control of the Association. I would suspect in these cases, especially if the developer is in bankruptcy, the membership could/would amend the CC&Rs in their favor.

Tim,

Did you read the links you posted? They are either off-point or lacking authoritative citations.

The Cudjoe case had nothing to do with selective enforcement; it dealt with the issue of whether the defendants were entitled to recover their fees after bringing their property into compliance while the lawsuit was pending.

The CAI article is not very authoritative. The author is not identified and there is no citation of authorities to support his/her conclusions. The one court opinion where I have seen selective enforcement discussed stated that there must be at least some element of animosity on the part of the prosecuting party against the accused.

The conclusion reached in the Taylor & Carls article is shaky. The article lacks any in-depth discussion of why the hypothetical situation would qualify as selective enforcement. It would be nice to see some scholarly discussion of what elements must be present to qualify as selective enforcement. In the situation cited, it would appear that action was taken against an owner that no one liked while a popular owner was not charged with the identical violation. I am not certain that mere dislike is sufficient to sustain a charge of selective enforcement. When courts issue opinions they not only state the facts and the conclusions but almost always state in great detail what authorities they relied upon to reach those conclusions. That is missing from this discussion.

The HOA Management Blog article is only slightly better than the CAI article. Again, the author and his credentials are unknown. There is mention of one South Carolina case by name and a reference to an unnamed Georgia case. Not very authoritative. In the SC case, the author alleges that the court dismissed the homeowner’s claim of selective enforcement as the HOA presented solid reasons for denying the owner’s building plans. In the Georgia case, the author states that the court found the HOA’s actions to be “capricious and arbitrary.” While the author equates that with selective enforcement, I have encountered that same phrase (“capricious and arbitrary”) in numerous opinions that had nothing to do with the tort claim of selective enforcement. The author seems to be reading more into the case than what the court ruled, but since we do not know the source of his information we can neither confirm nor refute his conclusions.

Bottom line is that none of these four articles or opinions deal with substantial "selective enforcement" issues.

Tim & Matthew,

Thank you.

Tim, some in my community are of the opinion that selective enforcement is taking place-and it is because of animosity. Questioning the Board/Developers in our community in the past has been perceived as very risky. Most of you experienced folks understand the careful language I have been using. It is intentional, we are bringing changes from the inside and have been for some time.

Recently we have had enough and have requested outside help. The court of public opinion is also very useful in creating discomfort for unethical/questionable decisions. But, when people can use their connections to help stifle challenges, at least temporarily until they are exposed, the task to set things right becomes that much more difficult. Very few people will continue to make waves in situations like what we have/are experiencing here, IMO. I count what my wife and I are doing here as one of our top 5 actions to be most proud of as Americans. (Hence the reason I point to our 32 years of marriage.)

I have been amazed at some of the participants on this site, and that they either are blind to some of the tactics certain BODs will employ, or they just have not experienced it. My questions here are really about exposing how much it takes before legal authorities will get involved. Until moving here I had always felt my government would protect everyone's rights to pursue life, liberty and happiness. I am reasonable. I understand our government has larger problems than disgruntled HOA members; however, there are those who also understand this and take advantage of it.

Just last night a neighbor, a solid individual, and one who is liked by "both" sides said to me that the BOD now understands that they are not going to be able to force me into moving. He admitted his opinion was that they tried. Unbelievable! Others, IMO, did decide to move or sold their lots before building because of what they perceived was taking place here.

A Board member resigned some time back when an individual who had served on the Board, and her husband was president of the Board at the time, admitted openly in a Board meeting when the mentioned Board member asked a question of them if they had ever investigated Frank X. She said they had. They own a private investigating firm. They refused to answer other questions of his such as what was the purpose, what would they have done with the information, who else was investigated, did the Board sanction this, etc. He resigned as he felt this was extremely unethical behavior of which he wanted no part of. Maybe some of you now understand why I was very proud to have a solidly clean legal record, criminally and civil. I and others are of the opinion that if information would have been uncovered it would have been used to attack my credibility and therefor blunt my criticisms. It was simply a fishing expedition IMO. Interestingly, when I asked her why they did not admit to everyone that nothing was discovered on me, she stated because bad things had been said about them by people other than us and so her and her husband felt they did not need to say anything. Realize, numerous people knew of the investigation and had heard rumors about us (I have my thoughts as to who started them.) and never knew the rumors were false until my wife and I authorized a legal back ground check which we then shared with neighbors.

Someday I will share the full story, which as the attorney who lives in our neighborhood recently said-it is outrageous what has transpired. This is also why I give Mike a lot of latitude. Some of you just don't know what others have experienced. My wife calls our community 'Pottersville' and refuses to do any more volunteer work unless we directly benefit. I fight daily from going down the road Mike has where a severely terrible experience flavors everything else. It is not easy, and Mike deserves some slack, IMO. I also realize from posts like Melissa's and others that the people here truly want to help and take their roles seriously and as such ought to be offended when some of us paint with a broad brush.

Hope that helps Tim, thanks for taking the time to read this.

Mike,

My brother, like you, lives in a development that has a runway. It is a flying community-near Atlanta. (He has built 9 RVs, owns a Steerman and is an FAA inspector for home builts.) He has been the president of his HOA Board several times, and hates it. They always ask, he can not say no. He would tell you the apathy, free-riders, members only looking out for themselves etc. makes his job nearly impossible and his attendance at neighborhood events is no fun when he is on the Board.

He is one of the most honest and ethical people I know. But for things like rebuilding their pool, it is a no win situation as the membership on spending issues is usually evenly split and so whatever decision is made, about half of the residents will think it is his fault.

Tim's opinion is about the same as the legal advice consulted locally. Actually, several of us are thinking about sending a certified letter this year about not paying our dues because we feel the contract is not being enforced. Then when they take us to small claims we can make our cases and see what the courts say. What you quoted above is so true about the expense to reign in some of these kooks. Maybe a forced small claims action would be simpler? Tim, your thoughts.

There is a chance they might not even file against us knowing we would bring everything out in open court. Could be fun actually I hate bullies!!!!!

Here is the rest..to do anything otherwise is to defy well settled law (in my state sure, but others as well)...not a good course of action:

"We add that a unit owner is not without remedy or recourse to challenge the propriety of common expense assessments. We suggest that aggrieved unit owners should timely pay -- under protest -- the common expense assessment. Thereafter, a judicial determination of the legality of the assessment, and suitable reimbursement, may be sought"

I disagree.

The many "great" HOAs out there are just one "election" away from disaster.

In the absence of a significant body of law, accompanied by ENFORCEMENT provisions....

HOAs are a tremendous, unpredictable risk to your savings and your equity.

The reverend Baker (remember him, big money TV show) could recite the commandments backwards and forwards....

And he still drugged and gang raped that young girl. (some intern..Jessica something or other right?)

I am no fan of "Big Government" either. But our government is FAR from Big Brother!

On a daily basis we read about corruption in governement, and law enforcement comes down on them like a ton of bricks.

(Great pic of a MA state rep stuffing bribe money into her underwear, courtesy of law enforcement)

On a daily basis we read about corruption in HOAs (but certainly not from their own Pravda like newsletter).....and nothing happens!

A used car dealer could not get away with ripping us off, because of the tremendous body of law, accompanied by ENFORCEMENT of the law that controls that business.

Where is HOA law that should protect our investment far greater than a used car?

And why do we let the sleezeball HOA attorneys "lobby" our legislature (CAI) with OUR OWN MONEY to kill any bill that would

protect our savings and equity from this sorry state of affairs?"

A HOA is run by the majority of thought of the members. Withholding your money to prove a point is causing even greater damage to yourselves in the long run. A HOA is ONLY funded by it's members FOR it's members. So what does withholding money really do? Plus to have "Them" take you all to court? There are no "Them or They" in a HOA. It IS "YOU and YOUR neighbors". The "They" you refer to are those that got themselves elected to represent YOU ALL.

The approach to take is exactly in majority. Read your documents. Majority votes of your membership is what is required to make changes. A special meeting may need to be called for that majority to meet and make their majority decision, but it's still what most want to happen. That may be that an existing rule no longer applies, want additional restrictions, or recall of the board in place. A HOA is managed by it's members for what the members want to live and be managed by.

The "Selective enforcement" rule is more of a "perception" issue. Yes, it may be reality. However, no one situation is the same. You can't paint all violations with a broad paint brush. A member may indeed have a huge "political sign" on their front lawn. Another member may have a small sign. Both are violations. However, the one with the small sign may remove theirs after one notice. The other member may protest, refuse to pay their dues and been given 30 day notices to remove. It is also "Selective Reaction" as well as enforcement.

No one goes to our meetings either. No one goes to most HOA meetings across the country.

The meetings are absent any Open Meeting law and as such they are a joke.

They are a waste of time to attend. Worse, if you do attend and let them claim a Quorem they then can tout the fact that

homeowners actually approved all of their manipulative/preplanned actions.

So we don't go. It is our only REAL vote in these places.