Selective Enforcement

DonO1 (Florida)
Posts: 6

Posted:

I am a member of an HOA and my wife and I want to paint our home. I went to the CCRs, Declarations and articles of incorporation and nothing specifically addressess painting except exterior modifications. I do not agree that painting is a modification but regardless I requested permission anyway. HOA came back and said that color is not IAW neighborhood so I asked why since there are other pastel green homes in the neighborhood? No answer by HOA. I was out in my driveway and the secretary of HOA approached and did not even introduce himself just shoved a book in my face and said I must follow the color schemes. There is no mention of color schemes in any documents and then I was given a copy of the Rules and Regulations that are NOT published by the HOA. I scoured through and still no mention of following this book. The only requirement by the NON-published HOA Rules and Regs is that you must paint in pastel colors. My green is so pastel it is almost white. My lawyer says to paint my home and forget about HOA since they are trying to enforce a rule upon me which does not exist and the fact that green is already in the neighborhood and even the Secretary of the HOA did not follow the color schemes. Does anyone have any guidance since they are truly selectively trying to enforce non-published rules and rules which do not exist. (if you are interested the color is called "tempered spring"

Don

MelissaP1 (Alabama)
Posts: 13,836

Posted:

There are certain approved colors a HOA may have. It takes ALOT of hard work to get those too. It's not easy as paint companies every 7 years or so change the formuala. Your "Pastel Green" is not the same pastel green 10 years ago or the next 10 years. It then comes down to the formula of the paint for matching purposes. That is why your HOA does indeed have an approved color chart with the color and possibly the type of paint to use. You may want to make sure you don't do a "Glossy" finish as well. That can really make your chosen colors change the looks.

We had a satin finish on the homes and assigned colors posted or upon request. Most HOA's I know have this. I would not listen to your attorney as he's sounds like he's full of bull and just wants you to pay him if you decide to sue. The HOA does have an approved color chart. They can repaint your home and send you the bill. If you don't pay that bill, they can then lien for it. That will include their costs, lien filing fees, and legal fees.

I'd get a copy of that approved color chart and pick one you want... Then be done with it.

Former HOA President

DonO1 (Florida)
Posts: 6

Posted:

You are missing the point...There is NO approved color scheme for the HOA...Not anywhere in any document... And the only document around only states "pastel colors"

FredO (California)
Posts: 198

Posted:

DonO1,

I would "NOT" paint until the issue is resolved. Since you have discovered that there is no approved color chart or a specific rule published by the HOA, I might consider requesting an IDR meeting if allowed or instructed in your governing documents. If your ACC committee allows, you might start by requesting a "variance" using the other homes in the development with Pastel Green colored homes.

Melissa is correct, that paint companies change their colors every few years and that makes it a challenge for HOA ACC committees to stay current.

My HOA has 7 different colors to choose from. However, the committee is tasked with making sure we don't have too many homes with the same color clustered in the neighborhood. (According to the ACC guidelines this would give an un-balanced look to the community).

I would be wary of what your attorney said. The Governing Documents may have an appeal process indicated (IDR, Variance etc) where you can present your case and justification for he color you want to use. Whether that be because a precedent was set by the HOA allowing in allowing others to use the version of green on the other homes, or the issue that the rules are not "published" (what is the definition of published for your purpose? - does it mean the document has to be filed with the County recorder's office and made available to anyone?)

In my HOA, the CC&R's are recorded as are the by-laws. However, the ACC guidelines are not recorded but they are dated and signed as approved by the board and sent out to all members. Same with rules like for pool use, parking etc. Locally approved and distributed.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By FredO on 09/12/2013 1:11 PM
DonO1,

I would "NOT" paint until the issue is resolved. Since you have discovered that there is no approved color chart or a specific rule published by the HOA, I might consider requesting an IDR meeting if allowed or instructed in your governing documents. If your ACC committee allows, you might start by requesting a "variance" using the other homes in the development with Pastel Green colored homes.

Melissa is correct, that paint companies change their colors every few years and that makes it a challenge for HOA ACC committees to stay current.

My HOA has 7 different colors to choose from. However, the committee is tasked with making sure we don't have too many homes with the same color clustered in the neighborhood. (According to the ACC guidelines this would give an un-balanced look to the community).

I would be wary of what your attorney said. The Governing Documents may have an appeal process indicated (IDR, Variance etc) where you can present your case and justification for he color you want to use. Whether that be because a precedent was set by the HOA allowing in allowing others to use the version of green on the other homes, or the issue that the rules are not "published" (what is the definition of published for your purpose? - does it mean the document has to be filed with the County recorder's office and made available to anyone?)

In my HOA, the CC&R's are recorded as are the by-laws. However, the ACC guidelines are not recorded but they are dated and signed as approved by the board and sent out to all members. Same with rules like for pool use, parking etc. Locally approved and distributed.

Sound advice. Do not just go ahead and paint. Back off. Discuss it with the BOD, ARC. In the long run you would even be further ahead just going with a color they say is approved.

You could end up with a color you like and legal battles that you do not like.

Be cool about his.

JulianneW (California)
Posts: 25

Posted:

Read your CC&Rs and, if they have them, the architectural policies and procedures. Most of them specify a period of time the HOA has to accept or reject an application. If they don't respond with an approval or rejection within the specified period of time, the request is considered automatically approved. No board or committee member should be addressing the request by accosting you in your driveway. All official communication should be written. If your HOA board is so disorganized, you have a good chance of getting approval by default.

Otherwise, insist that they follow their own policies and procedures and/or CC&Rs. It will take you more time but it will be a valuable lesson for the board, and hopefully improve the process for other homeowners.

DonO1 (Florida)
Posts: 6

Posted:

Issue I will have is that Board of Directors (3 members) are also the ARC or ACC members and no one else. It is like Judge and Jury all in one. If I appeal, it only goes back to the board but my plan is to ask for mediation and force this to an outside approval since it seems only their friends are exempt. Again the Rules and Regulations written and approved by the Board of Directors and never given out to me only state, homes must be painted in pastel colors period. I am abiding by a rule which they made up. I was a president of an HOA at one time, not this one, but I know that what they are doing is illegal in regards to selective enforcement and they cannot be allowed to continue this type of behavior.

FredO (California)
Posts: 198

Posted:

Don,

Then as an ex-president of an HOA, you know then, that the proper way to go about this is to appeal their decision, go before the board, then ask for a variance, then appeal if they say no on the variance. Then write a strongly worded letter to the Board and HOA attorney regarding the selective enforcement.
Hopefully the attorney will set them straight. If not, then on to the IDR process which might end up in binding mediation (I do not know the Florida laws on this. But this is the basic process here in California per the Davis-Stirling act).

You'll get there, but unfortunately it will take some time.

IsaacL1 (Florida)
Posts: 1

Posted:

I think that selective enforcement is illegal (not an attorney). But DO NOT roll over and play dead. You have rights. Enforce them.

TimB4 (Tennessee)
Posts: 21,062

Posted:

Quote:

Posted By IsaacL1 on 04/04/2022 3:22 PM
I think that selective enforcement is illegal (not an attorney). But DO NOT roll over and play dead. You have rights. Enforce them.

Selective Enforcement is an affirmative defense.

Translation, I did it but so did others.

A court may or may not take that into consideration.

Because a court might take it into consideration, Associations should not practice selective enforcement for concerns that, if challenged, they may lose their case.

KerryL1 (California)
Posts: 14,550

Posted:

please note; old post

PaulaB7 (Georgia)
Posts: 4

Posted:

I have a selective enforcement question. Since this is an old thread as mentioned Ed above where do I go with another current question? I am new to this site.

KerryL1 (California)
Posts: 14,550

Posted:

Welcome to the forum, Paula. On the Home page a few lines below "Welcome to HOATalk.com,' You can click on "Add New Topic" in bold with a little symbol next to it. In your post it helps to say if you're on the Board, and if your Association is condos or detached homes. Good luck.

PaulaB7 (Georgia)
Posts: 4

Posted:

I just finished two years on the BOD. I was so disturbed by the way the President handled things I could not remain on BOD. Recently our vehicle was entered and papers thrown about, discovered by neighbor that door was open at 5am. My husband is also disabled, has vision problems, afib and ongoing issues with passing out. I have requested approval for a video RING floodlight to replace my current black standard porch light. That means it is already wired. I need to protect my vehicle and prevent possible fall for my husband. Most porch lights in community are black but BOD saying I can only have brown video floodlight as black is not architecturally acceptable. Really, with standard black porch lights everywhere? The exterior is multicolored brick. I feel I am being singled out due to previous and ongoing disagreements. This is a safety issue.

SheliaH (Indiana)
Posts: 6,964

Posted:

The documents say what they say, so that's not necessarily selective enforcement. It may be that's what the developer installed when the community was built. If you want this changed, you'll have to convince a significant number of your neighbors to push for a CCR amendment to this effect.

Since that can take awhile, have you checked if this floodlight is available in brown? Would it be possible to get a motion detected floodlight in black and use that with a regular RING doorbell? Perhaps it could be set up where the doorbell can alert you to someone being on the porch as soon as the light goes on. Although I'm thinking the RING floodlight wouldn't be necessary, because of the motion detection and you'd already know someone or something was at the door.

PS - you're still responding on an old post - set this up as a NEW topic (Kerri explained how). This way, no one has to wade through all the old information to get to your current situation and you'd get useful suggestions faster.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

SheliaH (Indiana)
Posts: 6,964

Posted:

PPS: I see these floodlights are available in black or white- could you buy a white one and paint it? Maybe you should contact Ring customer service and ask?

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

JohnC46 (South Carolina)
Posts: 14,265

Posted:

See the below:

https://www.qvc.com/qvc.product.E241240.html?colorId=202&sizeId=000&ref=GBA&cm_mmc=GOOGLESHOPPINGFEED-_-GShopping|BrandProduct|home+improvement+home+environment-_-Home+Improvement-_-dc_135386409093_pla-1715004423837__E241240-202-000&cm_mmca1=c&cm_mmca2=135386409093&cm_mmca3=pla-1715004423837&cm_mmca4=E241240-202-000&cm_mmca5=pla&cm_mmca6=16923249490&cm_mmca7=Acquisition&cm_mmca8=Acq&cm_mmca9=Cj0KCQjwgYSTBhDKARIsAB8KuksrQsH6_H0E4cA0mhYpDUoXrJnbpBpnUt54zbj9H0LCBBmYv-LogA4aAgeAEALw_wcB&cm_mmca12=Vendor&cm_mmca13=Home+Improvement&cm_mmca14=534-976-1714&gclid=Cj0KCQjwgYSTBhDKARIsAB8KuksrQsH6_H0E4cA0mhYpDUoXrJnbpBpnUt54zbj9H0LCBBmYv-LogA4aAgeAEALw_wcB

Have it painted black.

CathyA3 (Ohio)
Posts: 6,299

Posted:

This is an old thread - although outrage over paint colors seems to be a perennial issue.

MarshallT (New York)
Posts: 414

Posted:

If the rule does not exist, it can't be enforced. Make sure you take photos of the paint, and that you have a copy of the current (published) documents. It may also be helpful to mention to the board that you have consulted with a lawyer about this issue.

DavidG45 (Delaware)
Posts: 994

Posted:

Quote:

Posted By JulianneW on 09/13/2013 5:31 AM
Read your CC&Rs and, if they have them, the architectural policies and procedures. Most of them specify a period of time the HOA has to accept or reject an application. If they don't respond with an approval or rejection within the specified period of time, the request is considered automatically approved. No board or committee member should be addressing the request by accosting you in your driveway. All official communication should be written. If your HOA board is so disorganized, you have a good chance of getting approval by default.

Otherwise, insist that they follow their own policies and procedures and/or CC&Rs. It will take you more time but it will be a valuable lesson for the board, and hopefully improve the process for other homeowners.

Our CC&R specifically state that if you have not heard back within 60 days you must assume the request as been denied.

AdamL1 (UnitedStates)
Posts: 559

Posted:

Quote:

Posted By DavidG45 on 05/03/2022 9:16 AM

Posted By JulianneW on 09/13/2013 5:31 AM
Read your CC&Rs and, if they have them, the architectural policies and procedures. Most of them specify a period of time the HOA has to accept or reject an application. If they don't respond with an approval or rejection within the specified period of time, the request is considered automatically approved. No board or committee member should be addressing the request by accosting you in your driveway. All official communication should be written. If your HOA board is so disorganized, you have a good chance of getting approval by default.

Otherwise, insist that they follow their own policies and procedures and/or CC&Rs. It will take you more time but it will be a valuable lesson for the board, and hopefully improve the process for other homeowners.

Our CC&R specifically state that if you have not heard back within 60 days you must assume the request as been denied.

really? default = denial? Can you verify that, as most all ccr's I've read are written as a stale request is summarily approved.

DeanJ
Posts: 1,786

Posted:

Quote:

Posted By FredO on 09/12/2013 1:11 PM
DonO1,

I would "NOT" paint until the issue is resolved. Since you have discovered that there is no approved color chart or a specific rule published by the HOA, I might consider requesting an IDR meeting if allowed or instructed in your governing documents. If your ACC committee allows, you might start by requesting a "variance" using the other homes in the development with Pastel Green colored homes.

Melissa is correct, that paint companies change their colors every few years and that makes it a challenge for HOA ACC committees to stay current.

My HOA has 7 different colors to choose from. However, the committee is tasked with making sure we don't have too many homes with the same color clustered in the neighborhood. (According to the ACC guidelines this would give an un-balanced look to the community).

I would be wary of what your attorney said. The Governing Documents may have an appeal process indicated (IDR, Variance etc) where you can present your case and justification for he color you want to use. Whether that be because a precedent was set by the HOA allowing in allowing others to use the version of green on the other homes, or the issue that the rules are not "published" (what is the definition of published for your purpose? - does it mean the document has to be filed with the County recorder's office and made available to anyone?)

In my HOA, the CC&R's are recorded as are the by-laws. However, the ACC guidelines are not recorded but they are dated and signed as approved by the board and sent out to all members. Same with rules like for pool use, parking etc. Locally approved and distributed.

You might ask if your Association has an established design standard.

DavidG45 (Delaware)
Posts: 994

Posted:

Quote:

Posted By AdamL1 on 05/03/2022 2:26 PM

Posted By DavidG45 on 05/03/2022 9:16 AM

Posted By JulianneW on 09/13/2013 5:31 AM
Read your CC&Rs and, if they have them, the architectural policies and procedures. Most of them specify a period of time the HOA has to accept or reject an application. If they don't respond with an approval or rejection within the specified period of time, the request is considered automatically approved. No board or committee member should be addressing the request by accosting you in your driveway. All official communication should be written. If your HOA board is so disorganized, you have a good chance of getting approval by default.

Otherwise, insist that they follow their own policies and procedures and/or CC&Rs. It will take you more time but it will be a valuable lesson for the board, and hopefully improve the process for other homeowners.

Our CC&R specifically state that if you have not heard back within 60 days you must assume the request as been denied.

really? default = denial? Can you verify that, as most all ccr's I've read are written as a stale request is summarily approved.

Yes. It seemed like a really ad rule when I first read it, so every now a d then I revisit it hoping I read it wrong:

If the Architectural Board fails to approve or deny an application within thirty (30) days of receipt of the complete application by and payment of fees to the Architectural Board, the party making the submission for approval shall deliver written notice to the Architectural Board of its failure to act, and, if approval is not granted or denied within fifteen (15) .days thereafter, the plans and specifications shall be deemed to be denied

LanceG1 (Georgia)
Posts: 97

Posted:

Ours is the opposite and approves if no action is taken (the way it should be). I would request all records for approved vs denied ACC requests along with ACC standards and minutes/discussions related to the approval/denial. If they are not willing to provide them, threaten legal action to compel them to provide the records and as needed file suit and take it through discovery to get them.

If there is a lack of clear ACC guidelines such as an approved color pallet, no documented process and clear patterns of favoritism are arbitrarily applied rules you may have a case. But, if there are clearly defined guidelines, and approved color pallet, a documented process that is followed and no clear patterns you do not.