Suing my HOA for non-enforcement

Started by JeremyM3 • 17 replies • 1779 views

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JeremyM3 (North Carolina)
Posts: 122

Posted:

I was a board member for 1.5 years in my newly built community (5 years old, was turned over from builder to homeowners 3 years ago)

I did more than anybody on the board (positive things), but I was upset with the board because they won't enforce any violations or fine anybody even though our documents allow it. Yesterday I was voted off of the board because I want the rules enforced and they don't. They gave me 2 minutes to defend myself in the meeting, during that time another homeowner (that stated he refuses to follow ANY rules) was hooting & hollering "boooo" "sit down" "nobody cares" so nobody even heard my defense. It was surreal.

I have lots of documentation since I have all the board emails where they would vote on sending violation letters out for the below things, and decide not to issue them, even though they are black & white violations according to our covenants and not vague.

Violations in our community are, and some are committed by board members even:

Sheds being placed in the common area instead of on the owner’s property
Mold growing on side of houses that the board requested to be fixed back in October, still hasn’t been corrected
Yards with 90% weeds
Trees & bushes being removed or planted without approval
Trailers being stored in yards and driveways
Cactus garden put in 3 feet from sidewalk without approval
Fountain without approval
Oil spill in driveway the size of a car
Decorative mailbox covers
Trash cans being left out a day or 2 past the allowed time
Commercial vehicles being stored in driveways instead of garages

Has anybody here ever sued their HOA before for selective/non-enforcement? From what I've read, I'll need to hire a lawyer and seek an injunction. Am I looking at spending over $3,000-5,000 on that? Any advice?

FredS7 (Arizona)
Posts: 927

Posted:

> Am I looking at spending over $3,000-5,000 on that?

You are looking at an indeterminate amount of money to be spent over an unknown period of time to obtain an unpredictable result.

RichardP13 (California)
Posts: 3,868

Posted:

IMO, because of what you outlined as issues, this is not a Board issue, this is a community issue. You are in a no-win situation, especially one as young as yours.

JeremyM3 (North Carolina)
Posts: 122

Posted:

Why do you say it's not a board issue? Multiple homeowners were submitting violations on other homes for the things I listed, and the board took zero action as in they wouldn't even send the people a letter saying they're in violation. Some of the board members break the violations as well such as an unapproved shed, unapproved fence, unapproved cactus garden in front yard, and storing a car trailer in their driveway.

RichardP13 (California)
Posts: 3,868

Posted:

In most associations that I have managed or been involved with, the number of violators are somewhat limited. It appears, from my perspective, this is more than just a small number of owners, that appears to be community-wide. The common thing to do is get like minded people to run for the Board and have majority control. But, how would the owners respond that are in violation to people getting in power to change what has been the status quo. Maybe it's not as big a problem that you describe.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Jeremy,

Selective enforcement is more of a defense (you are denying me xyz although others within the community have been allowed to have xyz OR you want men to do xyz when others with the same issue are not required to do xyz) vs. a charge.

See:

Avoiding HOA Rule Selective Enforcement Claims

Selective Enforcement Challenge for Homeowner Associations

Avoiding Common Covenant Enforcement Defenses

Your Board chose to not enforce certain covenants. As long as they don't try to enforce those covenants/rules on one and not others then, in my opinion, they are not doing selective enforcement. They simply chose not to enforce.

Remember, you as a member has the same authority to enforce as the Board does. Rather then bring legal challenges against your Association, why not bring legal action against the violators?

CjC
Posts: 210

Posted:

Do your covenants state what happens in the event of a violation? We can not fine (oops, they left that out) but have to keep requesting them to correct it and then we can correct it ourselves and charge them and lein. Not exactly ideal situation....

JeremyM3 (North Carolina)
Posts: 122

Posted:

Yes, our covenants and also state law say they can be fined up to $100 every day, after they are given notice of the violation and the opportunity for a hearing. Then they can have a lien placed on them, the HOA can fix the problem themselves and charge the homeowner for that, or foreclose.

JeremyM3 (North Carolina)
Posts: 122

Posted:

Tim I like your advice and appreciate it.

Do you know what kind of legal action it would be against an individual violator? I don't think small claims court would work, since I don't have any monetary damages. Would I just hire a lawyer and seek an injunction against the individual?

The board is enforcing rules on some people and not the others as well. As an ex board member I have emails showing how they would vote to send somebody a violation for trash cans out past the allowed time, but not for other people. That's just one example, there are others too.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By JeremyM3 on 06/02/2017 6:17 AM

Do you know what kind of legal action it would be against an individual violator? I don't think small claims court would work, since I don't have any monetary damages. Would I just hire a lawyer and seek an injunction against the individual?

It varies by State but I suspect whichever court that has the authority to order an injunction would work.

Keep in mind, I doubt you will make friends utilizing this route.

Quote:

Posted By JeremyM3 on 06/02/2017 6:17 AM

The board is enforcing rules on some people and not the others as well. As an ex board member I have emails showing how they would vote to send somebody a violation for trash cans out past the allowed time, but not for other people. That's just one example, there are others too.

Then those who were sent the violation would have to challenge (in court).

However, the court could rule several ways:

1) The Board is not selectively enforcing, you are in violation an must comply.
2) The Board is selectively enforcing, but you are in violation and must comply.
3) The Board is selectively enforcing, you are in violation and must comply and the Board must start enforcing equally.
4) The Board is selectively enforcing, you are in violation but must only comply once the Board starts enforcing equally.
5) The Board is selectively enforcing, you are in violation but do not have to comply

AustinS1 (California)
Posts: 13

Posted:

Hey Jeremy What are you doing to identify the issue, track, and document everything?

DouglasM6 (Arizona)
Posts: 724

Posted:

Quote:

Posted By JeremyM3 on 06/01/2017 12:01 PM
I was a board member for 1.5 years in my newly built community (5 years old, was turned over from builder to homeowners 3 years ago)

I did more than anybody on the board (positive things), but I was upset with the board because they won't enforce any violations or fine anybody even though our documents allow it. Yesterday I was voted off of the board because I want the rules enforced and they don't. They gave me 2 minutes to defend myself in the meeting, during that time another homeowner (that stated he refuses to follow ANY rules) was hooting & hollering "boooo" "sit down" "nobody cares" so nobody even heard my defense. It was surreal.

I have lots of documentation since I have all the board emails where they would vote on sending violation letters out for the below things, and decide not to issue them, even though they are black & white violations according to our covenants and not vague.

Violations in our community are, and some are committed by board members even:

Sheds being placed in the common area instead of on the owner’s property
Mold growing on side of houses that the board requested to be fixed back in October, still hasn’t been corrected
Yards with 90% weeds
Trees & bushes being removed or planted without approval
Trailers being stored in yards and driveways
Cactus garden put in 3 feet from sidewalk without approval
Fountain without approval
Oil spill in driveway the size of a car
Decorative mailbox covers
Trash cans being left out a day or 2 past the allowed time
Commercial vehicles being stored in driveways instead of garages

Has anybody here ever sued their HOA before for selective/non-enforcement? From what I've read, I'll need to hire a lawyer and seek an injunction. Am I looking at spending over $3,000-5,000 on that? Any advice?

Quote:

Posted By JeremyM3 on 06/15/2017 10:42 AM
HOA just sent me a violation letter stating I'm in violation of:

"Garbage can in view of street", but it's not my garage can, that's stored in my garage. It's my recycling can that's stored on the side of my house.

Covenants read as follows:

All trash receptacles, wood piles, swimming pool pumps, filters and related equipment
and other similar items shall be located or screened so as to be screened from view of
neighboring streets and property; provided, however, if rubbish, garbage or any other form of
solid waste is to be disposed of by being collected on a regular and recurring bases, containers
may be placed in the open in the evening before a pickup is to be made as necessary to provide
access to Persons making such pickups. Equipment must be stored the same day as collection,
following collection.

Is having the recycling can there a violation, or not?

It sounds like you got your wish! They are enforcing now!

JeremyM3 (North Carolina)
Posts: 122

Posted:

They're enforcing against me...not against others.

To track and document everything I'm saving all emails and communications along with pictures of violations.

PitA
Posts: 1,416

Posted:

..... and other similar items shall be located or screened so as to be screened from view of neighboring streets and property .....

Yes, you ARE in violation.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By JeremyM3 on 06/02/2017 6:17 AM
Tim I like your advice and appreciate it.

Do you know what kind of legal action it would be against an individual violator? I don't think small claims court would work, since I don't have any monetary damages. Would I just hire a lawyer and seek an injunction against the individual?

The board is enforcing rules on some people and not the others as well. As an ex board member I have emails showing how they would vote to send somebody a violation for trash cans out past the allowed time, but not for other people. That's just one example, there are others too.

Sigh ... You do understand this will potentially cost you more than $10,000 or more before all finished??? If you plan to sue potentially you need to list those who violate and the HOA. Of course maybe a judge will take one look at this and just send the pack of you to arbitration.

GwenG (Florida)
Posts: 669

Posted:

Jeremy, suggest you listen to the others. There is no good that can come to you from a lawsuit against your HOA.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By GwenG on 06/16/2017 6:31 PM
Jeremy, suggest you listen to the others. There is no good that can come to you from a lawsuit against your HOA.

Depends on the circumstance. I and other owners did file a lawsuit against two developers (the original and the new who purchased the lots). The issue was they (between themselves to make a sale) changed our CCR's in violation of the State Laws and CCR's behind our backs without our knowledge drastically lowering the ACC standards. Their changes had a potential loss of value to the tune of $100,000 or more per owner. That was a valid reason to file a lawsuit. Later there were new Owners who were allowed to for example "plant trees in HOA irrigation easement". Event though this was pointed out as violation and still allowed we did not pursue, because we knew under our State Laws and docs that if the trees were found to be the cause of any issue down the road.... the Owner and not the HOA was responsible for the costs. The point is you need to pick your battles and have a high estimation of winning. Because in some States such as mine ... he who wins can also get reimbursed for their legal fees. However, if you loose you can be on the hook for other party legal fees. Therefore, choose wisely ....

GwenG (Florida)
Posts: 669

Posted:

Agree with Janet's caution. Blanket NO LAWSUIT is not accurate. But, the caution in this instance was contextual; this is not one of the battles that should be chosen IMO.

I did chose to pick a legal battle with my HOA. It was an important battle and worth fighting and there were NO subjectives involved in the evidence. NO FACTS were in dispute. This is important because the waters get muddy when facts are not clear or conditions are "implied/inferred". The HOA was told it could not win, but went ahead anyway. (Afterward, the insurance carrier dropped D & O coverage). I won and recaptured ALL my legal fees and costs. And, I told the HOA I would use my recovered fees to sue them again if they attempted to capture my vested property rights. I have had no further problems; however, another owner is currently suing them on appeal for a related issue, so the problem is not really totally settled yet. (Our insurance D & O now requires a $75,000 deductible before it will kick in and Legal Fees are huge proportion of our Operating Budget.)

BONUS ROUND: Additionally, the "no-gag" settlement provided for the "release" of an incompetent property manager who perjured. It was a win for me AND the community. The point is to consider carefully your chances of success before filing a legal complaint. There are usually a lot of stops before a lawsuit that can be explored.

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