Do we pursue those who didn't comply in the past?

Second issue...we had an outside management company handle many of our affairs because the former board members didn't want to confront home owners directly. In some cases, home owners just did whatever they wanted to do and other than a letter from the management company, no enforcement was followed through so if someone wanted to paint their house without permission, they did it without consequences. Want a shed in your backyard even though it is against the declarations? Some did. But not that we got rid of that management company, we are trying to go back to enforcement. Now, in no way am I trying to burn home owners for things they already did. However, I've had a few come forward with the "Well they did so why can't we?" argument. Our declarations say you cannot build a shed in your backyard. Some want to do it because 2 other home owners did without permission and got away with it. We've considered trying to grandfather in those who jusst did what they wanted but I am getting some static from the ones who want to do what others did even though it is against the declaration.

What argument would you make for not allowing some to do what they want when others already did? Or...can someone say that the board is not fairly enforcing the rules, something Ihave heard can get a board sued by home owners?

The Association must enforce the covenants, rules, regulations and utilize the architectural guidelines equally.

The Board can't grandfather existing violations. They can grandfather those who would be in violation of a new covenant/rule (which is done by including grandfathering language in the rule when it is adopted) but not one that already exists.

The Board also can't authorize waivers to the CC&Rs (unless that document specifically grants such authority to the board).

The Board can either enforce the CC&Rs, rules, regs, etc. or chose not to enforce at this time (hoping to change the rule).

I also think that you may be trying to do too much too soon. You mentioned that you want to amend the CC&Rs. That, for us, would be a two or three year project to make sure that we have the support and proxies needed.

Now you are saying that you want to boost enforcement.

My suggestion is to initially do one or the other. My suggestion is to physically walk around the development and identify how many have sheds. Then change the covenant if needed and adopt a guideline to the size, style and color of sheds based on what is already in place. We took a year to identify every violation on every lot, correlate the violations and then suggested changes to the architectural guidelines and CC&Rs based on those inspections.

Hi Gregg

You are being asked to defend/repair the actions/inactions of prior boards.

The first question you should be asking yourselves is whether this is a matter of urgency. IMO, sheds and paint don't belong on the top of a new board's priority list. Communications should be your number one priority. There's a new attitude of a new board that needs to be conveyed to the HOs - you need to set your own agenda and communicate it to all.

My recommendation re the sheds is to announce a 6-month moratorium on all shed requests. Form a task force (or whatever you want to call it) to evaluate and make a recommendation to the board on what path to pursue. Give the group parameters and let them come up with a recommendation.

The first thing you will learn is how many HOs care about the issue. Right now all you have is a few people asking "why not" when you don't even know how large the issue is.

Until you size the issue, you just don't know how much of your time it should take up.

Personally, I am not a fan of demanding retroactive compliance. I also think that grandfathering can be tailored to suit the circumstance. It can be forever, or until the house is sold, or for 24 months - or whatever arrangement suits the community. I would even put this question to the task force and ask them to make a recommendation.

Personal story - when I first got on the board, I was amazed at how many people approached me with complaints about what prior boards did wrong. For some, it was just a matter of being listened to. For others, it was trying once again to get something through that was previously denied. But in short order, that noise faded away - I realized fairly soon that we shouldn't get bogged down in the past - we had to start focusing on the future issues that prior boards were clueless about.

Rule #1 - Don't let the HOs set the agenda - That's the job of the Prez. No one can anticipate the future needs of your community better than your board members - That's the job.

Rule #2 - Don't assume that your HOs understand what you are thinking and doing. You'll announce a change today, and 2 years from now, someone will be saying they weren't notified. At least 1/3 of all HOs don't listen until the issue affects them directly.

Rule #3 - Build confidence. Do something that the majority of HOs can get behind and appreciate. Set an agenda that will truly benefit the community.

Sounds like a tough spot to be in, Gregg, and I applaud your desire to do the right thing while looking for flexibility so that you don't come off as an unreasonable tyrant. Several people have offered good insights above. The only thing I'll add is your board seems to be in a position where you feel your hands are tied by the actions (or inaction) of a previous board. To what extent is it reaonsable to assert that a current board's hands are tied because at some point in the past there were years where, on occasion, the boards did the wrong thing? Should all boards going forward be forever handicapped by that? I don't think so.

How many sheds are there currently? What would the cost be to the association to demand the existing sheds be removed and then reimburse the owners (pro-rated, of course, you don't want to pay replacement value on a 10-year-old shed)? I suppose even that would be an improper use of association funds without some language in the governing documents to authorize such payments. On the other hand, the board that was lax on the sheds when they first went up were acting on behalf of the entire association, so you could argue it's now up to the entire association to bear the burden of a remedy to bring everyone back into compliance with the CCRs.

Good luck, we have 2 homeowners who put up solar hot water panels on their roofs 12 years ago which directly violates our CCRs. It's not an issue at the moment, but if a new owner came in and wanted to do the same we'd be in a quandary. Further complicating matters is both of the owners who put them up have moved on, leaving the burden of the cost of removal up to the new owners should a board decide to press the issue and demand compliance. For over 12 years no board here has had the desire to do that, but the day will come when a tough decsision will have to be made.

It's a contract and both sides need to follow governing documents. My community is in the early stages of deterioration. Boards change and most do not enforce what they should. This HOA is a few decades old and right now still looks ok. I think HOA contracts are pretty much worthless unless a property needs to collect assessment fees after a home has been foreclosed on. Then if there's a mortgage, and the HOA is second in line, which it generally is, the board just isn't going to be able to recover much. A lot of huff and puff, but in reality they just can't blow the house down.

Geno

So far the best real life approach has come from Larry in the form of a letter to all owners:

Neither the association, its board, employees, nor the management company have the authority to allow construction of improvements prohibited by the CC&R's. The current board is aware of a few structures erected in the past in violation of the CC&R's. The board has the lawful discretion to choose not to pursue action against those existing violations due to the cost of litigation and the uncertainty of prevailing due to the statute of limitations and/or doctrine of laches. The board reminds those who disagree with this decision that they have the right to seek enforcement through civil action at their own expense.

Even in the case of a BOD taking a firm stance and order something removed, how fair would that be after several owners? Right and fair are different issues. Not to play lawyer but, I believe if the BOD or fellow owner(s) pursued it after such a lapse in time/ownership changes, they would lose. I believe with the above letter and someone did something based on "others did it", the BOD would stand a fighting chance to get it removed.

Look further in the CCRs, there may be an article that says, just because others did so does not give permission for others.

Also, there may be another article that says homeowners within the HOA can, by court, force others to obey the covenants. So if I can't have my shed, and my board won't make the owner with who's had one for 20 years take his down, I can take them to court myself to enforce the covenant of no sheds.

ADD ON

Does anyone know of a case such as above. BOD refuses to take action against an owner and and as a result, an owner sues a fellow owner?

What I do enjoy about this web site is that I can get such a variety of answers. Some people are actually very helpful and a few others seem to think they need to put me on the witness stand and drill me with questions and accusations. Those are the ones who I think have way too much time on their hands and must be taking their HOA titles a little bit too seriously.

My goal is not to play cop or see if I can use my title to bust people in the subdivision. I am simply to keeps things fair and consistent. I do not want us to enforce a rule against someone when the previous board failed to enforce it against another. In a perfect world, we shouldn't have to enforce anything if everyone just took the tie to read the area declarations but since some have not, we are trying to educate them before making a small matter into a big one.

While a board may not have the authority to allow construction of improvements prohibited by the CC&R's, if another homeowner subsequently builds / improves etc. in violation of whatever, and then the board decides to pursue the matter on the new owner through legal means, wouldn't this argument break down?

In other words, I don't think there is language in most governing documents that permits a board to pursue legal remedies against some owners while simultaneously looking the other way for other homeowners when their situations are identical or similar.

As a board member you have no discretion when it comes to the rules. They are in place and you must make sure they are equally enforced. In my view it makes no difference what prior boards did. Now on your watch, violations exist and its your duty to address them. Unless there are written variances for the sheds (and if your docs allow variances), there should be no reason why you should allow these violations to continue. Selective enforcement is a dangerous game. If everyone wants sheds then amending your docs is the way to allow sheds. Until that happens, its not your decision to make, its only your duty to enforce.

You do not have to play cop or bust people. You can send out an informational flyer or include in your newsletter that there are a number of violations, including sheds, fences, pools (whatever the issues are) and the board will give residents 30 days to remove the violating structures and that the board has no discretion in this matter.

And now this just happened. Last week, the neighbors who live directly behind me had a guy working on their deck. At first it looked as though he was just doing some repairs but then we began to see an overhead roof being built. I spoke to another board member, Even though they did NOT put in an arc request, I stopped over and told the contractor that i they submit one now we will approve it so we'd have it on file. But we just saw the guy laying the roofing shingles...they are black, which is against the CC&R's. No choice here...I had to go over and tell the contractor that he had done it wrong, should him the CC&R's and explained that had the owners put the arc form is as they were supposed to have, he wouldn't have to replace the shingles. I've tried twice to speak to the owner but they haven't been home. And the contractor also said they did not get a city permit for the work. If people want to test this "new board" they are going to run into some expensive surprises.

Actually, there are three different issues now. 1. Sheds that went up under a prior board's watch; 2. Sheds that people want to go up under the current board's watch. 3. A roof that went up under the current board's watch.

I see no problem with cracking the whip on the roof issue. But as I said in my original post, I just don't see any urgency to bare your fangs on either of the shed issues. There is time to evaluate and assess. I have never heard of a shed crisis. In fact, the OP has been living there for 20 years without one.

As I said in my original post, the most important issue - even above and beyond enforcement - is communication.

Here in Florida a shed can become a projectile during a hurricane. It does not matter if anyone thinks the rules are silly or inconsequential. They are the rules of that particular association and the folks that purchased homes there did so knowing the rules. There are ways to amend the rules if the majority wish to do so. The main job of the board besides overseeing the daily operation of the association is to maintain or increase property values. When rules go by the wayside, property values suffer. Whether its a shed or a roof or a fence, its a violation of the rules that must be dealt with. And a new board trying to overcome the reputation of the previous board must make sure that the residents know it is not going to be business as usual. There are ways to deal with things in a friendly neighborly but firm manner without having to resort to law suits. I do not think of myself as a hard-liner but I take my job on the board seriously and I respect the rules we all must live by. Who am I to give anyone permission to violate a rule? Does the next door neighbor having to look at the shed have rights as well?

You’d be singing a much different tune if a neighbor put in something YOU didn’t like and it was against the CCRs, but the Board did nothing……

I agree some boards do go a bit overboard with CCR enforcement, but as Allison and Geno have said (along with a few other people)– you moved into a HOA community and its rules aren’t like a cafeteria (pick the salad and dessert, but ignore everything else for whatever reason). At some point, the Board has to draw a line in the sand and grow a pair – either enforce the rules or let everyone do whatever. In that case, what’s the point of a HOA?

As to Gregg’s question, I would say “yes, you’re correct, the previous Boards didn’t enforce the rules consistently or at all and that’s why THIS Board is taking a different approach. As someone said to me recently, the “but Billy’s doing it too” argument didn’t work when you were a child and it’s not going to work now.”

In fact, this may be a good time to look at the CCRs and walk the neighborhood to see if anything else has been allowed to run amok. Pick the top two or three problems (like the sheds) and remind everyone of what the rules are and how the Board will approach this going forward. Brace yourselves for some pushback – a few years ago, one of the associates at our attorney’s firm (who specialized in this stuff) commented that when Boards first get serious about enforcement, they will hear a lot of “my two neighbors have it, why can’t I” and threaten to sue, complain about their Constitutional rights being violated and all that stuff, but if you enforce the rules fairly and consistently, people will come around. If they’re really pissed off, they can always vote you out – at least you tried and now it’ll be THEIR problem.

Having said that, at this point, those with sheds should be grandfathered in and everyone else should be told they can’t have one because that’s the way the CCRs are currently written. If they want to change them, the Board can charter a committee and THEY can do the work of walking around the community to see who has what, come up with some design standards (which could address safety issues, as Ann pointed out), draft the rules (the association attorney should review it first), poll the homeowners to see what they want and then encourage people to vote. Lett’s see how much people really want this when they see what will be required to change the rule.

Our docs don't allow at-home businesses - We don't enforce that rule.
Our docs don't allow more than 2 pets - We don't enforce that rule.
Our docs don't allow trash cans outside - In our townhouse community, some houses don't have garages. We enforce the rule against homes that have garages but not against homes that don't have garages - unless a neighbor complains.
Our docs don't allow street parking during snow clearing - We enforce that rule without exception.
Our view is that rules shouldn't all carry the same weight. If there's a safety issue involved, we have informed the community that there is no lattitude - we enforce.
Not only do we prioritize, we let the community know what our priorities are.

Perhaps my word choice "prioritization" wasn't the best . . . My view is that you can't have a set of established rules and then pick and choose which ones to enforce. Certainly some are more relevant or important at certain times than other rules. However, simply ignoring a rule is a slippery slope that I'd rather not be on. IMO it would be best to change the rule so it better fits the association and what the community wants rather than simply ignore it.

In your situation NpS, if the community wants more than 2 pets per home, then let them decide. But when a homeowner complains about their next door neighbor having 8 dogs, does that rule suddenly start becoming important and getting enforced? What about folks who have had 2 pets for many years? You can't suddenly in good conscience say they aren't allowed to have that pet anymore (or maybe you can). And you can't put off enforcing rules so a future Board can deal with it. All will result in the same situation as the OP.

Either enforce the rules or change them to fit what the community wants and needs.

NpS, I suppose we will have to agree to disagree.

I can certainly appreciate the “live and let live” philosophy and I wish it were that simple; however, in due time I think it will come to bite you in the rear . . . perhaps not you personally, but a future Board based on the precedents set before and during your tenure. This is exactly the OP’s situation.

IMO, operating as you recommend is the exact definition of selective enforcement: acting arbitrarily by enforcing some covenants and knowingly not enforcing others; and enforcing the same covenant differently against different owners.

Here we will have to disagree.

As far as I am concerned, selective enforcement means applying a set of rules differently to one person than to another. We don't do that. We apply the rules the same way to everyone. But we don't guarantee that we apply the rules the same way as every prior board.

Some didn't enforce anything. Others were accused of gestapo tactics. We don't want to be locked into either position.