Wanting to sue my Homeowner's Association...but I'm on the board of directors

Jeremy,

First, welcome to the forum.

I suspect that your governing documents are similar to mine and specify that "the Association, or any owner, shall have the right to enforce." Therefore, unless your governing documents specify that the Association must the Board, similar to each member, may choose to enforce or not.

A member may choose to enforce on one individual. The Association, if they choose to enforce, must enforce equally on all members/residents. Failure to enforce equally will offer the member a defense of selective enforcement.

If you hire an attorney and take the issue to court, it's possible that the judge, rather then instructing to enforce, may simply say that since the covenant wasn't enforced, it is null and void. Therefore, consider your options carefully.

My suggestion would be to not try and remove the President. Instead, gather support and volunteers willing to serve and simply elect those who will enforce to the Board at the next election. This would be far less expensive and minimize fracturing the community.

No way to edit a post? The statement you wrote that confuses me is "Therefore, unless your governing documents specify that the Association must the Board, similar to each member, may choose to enforce or not."

"must the Board"?

Since you have mentioned commercial vehicles a couple of times, it seems this is the your one sticking point of enforcement. As Tim pointed out, CCRs will have a provision that will allow a Member to enforce a covenant a long as it is in the CCRs. If it is only in the Rules and Regulation, they can't.

Enforcement of commercial vehicle is a very touchy subject. Who really know the correct definition and should it be enforced in a community. People have jobs, some are even plumbers and electricians who probably have commercial type vehicles.

As president of my own association, I would vote against fining someone with such a vehicle. My first obligation was making sure dues were paid. Now, I wouldn't allow a 18-wheeler, but only because they couldn't park it.

There is some truth to the HOA not being a business, but a community. Your objection to the vehicles proves such a fact.

Elections have consequences as one former president once said. If enough people don't want commercial vehicle have them vote people in that will enforce their will.

The BOD's fiduciary obligation is to follow the contract, whether they may agree with items or not. If there are items in the contract that the BOD or membership would like to change then they need to exercise their right to Amend the Contract via legal meeting and legal vote of membership. For the BOD not to follow potentially would open the HOA to a lawsuit from a member who expects it to be abided by as currently written and as attached to their property title.

Unfortunately no.


Sometimes the fingers don't catch up to the brain.

Should have said that unless the governing documents specify that the Association (Board) must enforce, then it's an option.

Based on your citation of your documents, the developer (declarant), the Association and any member all have the right to enforce. There is no requirement that any of those entities exercise that right. It's a choice.

Your Board has chosen to not exercise that right with certain covenants. The next Board may or may not choose the same thing. This is why I suggested simply voting the bums out at the next election.

Thank you Tim. I'll continue trying to get my 51% (per our bylaws) of signatures to remove the President/VP immediately, and if that fails, I'll bring it up again in December at election time.

We have 49 houses, and I have 10 signatures already. I need 15 more in order to remove the President/VP, and I still have 25-30 more doors to knock on. I think the odds are in my favor.

Well said!

May I ask what enforcement methods does your HOA have? Your saying they aren't enforcing, well what are the enforcement options? Do you have a fining schedule? Your going to sue every violator? Do you lien/foreclose on those who don't pay their dues?

Sounds like a case of "Not seeing the forrest for the trees"... BTW: Lawsuits bad idea... Suing your HOA is suing yourself and your neighbors... Do you really think that is going to help your case???

Expecting that what you cited is all that the covenants specify on enforcement, then a good argument can be that your Association does not have the authority to fine. Per your citation, enforcement is to be done through the courts.

Virginia recently went through this issue.
If interested, see the following thread on this forum:

Subject: VA Associations, Do you still have the authority to use monetary penalties for violations?

Actually, the act states:

"Unless the articles of incorporation or the declaration expressly provides to the contrary, the association may:"

As I pointed out in the thread I suggested you look at, I learned in reading the court opinions and various articles about the cases was that the expression Expressio unius est exclusio alterius , a Latin phrase that means express mention of one thing excludes all others. The court ruled in Belhaven that since the CC&Rs specifically mentioned an enforcement method that the omission of other enforcement methods (i.e. monetary penalties) shows an intent to exclude.

I don't know if there have been any NC court cases about the statute.
If there have, it would be interesting reading to see if the same logic applied in VA is/was/will be applied in NC.

Oops, hit submit too soon.

Needed to add that this is if the Association was created in 1999 or later.
Otherwise, it appears the court decision was that the covenants must allow it.

If most of the board refuses to enforce the CCRs, you have a bigger problem than the president – perhaps all the board members who are voting not to enforce should be recalled – have you considered adding that to your petition?

Even if you do succeed in getting these people out (or at least the president), you still need to have people in place ready to step up to replace them so you can enforce the rules or whatever else the community wants to do. Got anyone in mind?

Is the commercial vehicle issue the only one that’s bugging people? It may be there are some other issues that really need attention – how many homes are in violation? If we’re only talking about 1,2 or perhaps 5, out of 49, that may not be a huge issue. That could be why the rest of the board is concentrating on the other issues. Another issue is fairness – if they’re determining which houses should get a notice and which shouldn’t, what’s the reasoning behind that? Are the ones getting notices repeat offenders? As a board member you should know the answer to these questions.

I do agree with Larry that there’s nothing stopping you and the other like-minded homeowners from banding together and duking it out with the violators in Small Claims Court – why haven’t you? Better yet, why haven’t the others attended the meeting and let the board know what they think? It’s one thing for everyone on the board to outvote you, but when confronted with a bunch of angry homeowners that could change their tune.

There’s also the matter of time and money – does the association have the money for what could be a lengthy battle? As treasurer, you should know the answer to that – and if there are other association issues that need more resources. I’m not saying the commercial vehicle issue isn’t important, but you really need to choose your battles.

Not true in Florida.

2002 decisionl; Vans with commercial signage have to go; Claim that the rule was "vague" is without merit.
2014 decision; Golf cart with signs advertising a commercial business has to go even though the cart was not used for business.


Associations have a pretty good track record of prevailing when they seek to enforce against "commercial vehicles". Those are all condo cases. HOA disputes such as these aren't subject to arbitration in Florida and finding court decisions is harder. I don't think it's unreasonable to assume that the courts would apply the same thinking toward HOAs as the DBPR does toward condos.

The language in the governing documents is important. While searching for the above DBPR decisions there were a couple of others that upheld a condo association's right to differentiate in its definitions of "pickup trucks" vs "SUVs" and allow or prohibit each separately. Careful attention to what an association defines as a commercial vehicle is extremely important.

There's also this opinion from an attorney published in a newspaper Q&A column that says,

"In other words, when the intent of the rule is clearly to prohibit commercial vehicles, an arbitrator will not defeat the purposes of the rule, but that does not mean that it is easy to adjudicate whether a vehicle is commercial or non-commercial."

Associations that are very clear in what they deem to be "commercial vehicles" stand an excellent chance of prevailing in their enforcement actions. In Florida, at least, there's scant evidence to back up the claim that nearly all "commercial vehicle" enforcement actions wind up as victories for the vehicle owners.

So there's no obligation to enforce ANY of the covenants then? The board can literally choose to enforce NOTHING at all and that's ok?

JeremyM3, you nailed it. There are limits to a board's not enforcing the covenants, even when there is a permissive clause on the point making enforcement optional. If a board, say, stops collecting dues; stops maintaining common areas; looks the other way while members either paint their homes polka-dotted orange; bulldoze their homes to build a high-rise apartment in the middle of the suburbs; or leave decrepit old cars with flat tires in their driveways, then I believe the courts would enjoin the boards to fix these non-compliant situations.

I would agree it is a member obligation as well. However, a member not enforcing another member cannot be sued by any other member nor the HOA for not enforcing. The difference is the HOA and the BOD can be sued for not enforcing and in some instances the injured party can add Violation of Fiduciary Duty to the lawsuit when they blatantly ignore violations. Keep in mind some insurances will not cover the BOD if found guilty for that violation. While the BOD can choose not to enforce ... they potentially can be held liable for failing to enforce and perform their duty.

There's been some interesting updates I have to share.

The HOA president is not allowing me to vote on issues. The rest of the board is voting behind my back on things. Is this illegal?

1 member of the board has said he doesn't care if every single house paints it bright pink with polka-dots, he won't enforce it because he doesn't think it will hurt anyone else's property values.

You were lawfully elected to a corporate board. The governing documents and state law refer to "the board" making decisions. The courts will enforce this.

1. Document all instances where your vote was denied, especially ones where your vote would have changed the outcome.

2. Raise this at the next open meeting. Do it even-toned and with completely sober voice. The point is to document that you asked. Ask the board to ensure all directors' votes are always solicited and counted. Document the next instance where you were denied a vote.

3. If no change, then send a letter of demand to the board. Wait two weeks.

4. If no change, then seek an injunction (this is much faster than a full-blown lawsuit).