Bylaw Problem

"Selective enforcement" means the board is enforcing a bylaw/covenant/rule against one (or some) Owner(s) but not others. If a HOA takes an Owner to court, and the Owner can prove "selective enforcement" is occurring, then the judge can rule for the Owner, and against the HOA, and order that the lawsuit be dismissed.

I bet your attorney is claiming that, when the Board does not enforce these Architectural bylaws against Owner X (who is violating the requirements of the Architectural bylaw), but enforces a non-Architectural Bylaw against Owner Y (who is violating the non-Architectural Bylaw), then this counts as selective enforcement. This is not so.

I checked the Michigan case law for "selective enforcement" cases. Of the few cases that come up that use the phrase, none have anything to do with HOAs/Condos practicing selective enforcement.

However, before coming down firmly on one side or the other (or possibly in the middle) I would have to read your Bylaws and see if there is anything that I feel supports the attorney's position.

Unfortunately once again I bet you are up against this attorney, who somewhat understandably holds himself out as expert on the law, along with the rest of the board.

Note to readers about Michigan: Michigan condos' bylaws tend to include what other states call "covenants."

So is selective enforcement not used in HOA lawsuits?

Hey again,

No, the attorney says you can't not enforce one bylaw and then enforce another one. With this reasoning, we cannot enforce any bylaws and I think that can't be the case. They do not want to enforce any of the bylaws because they (most) have broken them anyway. The Directors think they will be sued for selective enforcement if they try to enforce any other bylaw, as they have chosen to not enforce the Architectural bylaws. (It was determined many years ago that our Architectural bylaws were unenforceable and we have done nothing to amend or change them). But our other bylaws, as I have said, look good to me, even though the attorney says we may enforce certain bylaws to which the co-owner may create a reasonable legal challenge of uncertain outcome. But wouldn't that be true of all legal challenges. I think he just wants to make a bunch of money amending them all. What do you think.

Just wondering, are we weird in Michigan with the term "covenants?" Actually our particular Association calls them both, covenants and bylaws.

Question? Does the attorney mean you can't enforce them by a certain method? Like your HOA can't enforce fines against the violator? The HOA can't remove the violation and send the owner the bill?

It's not that you can't enforce the bylaws it may be the method of which your trying to do it. Your by-laws may say you can "fine" but lacks definition of that. Doesn't say how much and/or for what. That is why one has to create a "Fine schedule" to define what the fines are for. Say $25 a day Max $100 for leaving trash can out.

There is a difference between by-laws and CC&R's. By-laws are internal to the HOA. The CC&R's are public documents filed at your local courthouse. They follow the deed of the property. They are what are more enforceable. By-laws may or may not be filed with your convenants.

Exactly. I agree.

If the Bylaws are way old, and as is often advised here, a massive amendment and campaign to get the required number of owners to vote in favor of the amendment, is likely appropriate.

If I recall correctly from your Michigan condo/HOA and some other Michigan condo/hoas, Michigan Bylaws often contain lawful restrictions that, in other states, would not appear in the Bylaws but instead would appear in the Declaration of Covenants, Conditions and Restrictions. In Michigan, I do not think it matters. In other states, there is a definite hierarchy of governing docs: Declaration, Articles of Incorporation, Bylaws, Rules and Regs. (Currently I know of one fool of an attorney now in court claiming that "Board Policies" are a part of the governing documents. There is nothing in the Declaration, Articles, Byaws or Rules and Regs that even uses the word "policy." This is an example of an attorney raping a HOA.)

I'd say some states are sui generis in the way their hoa's/condo's covenants are presented. E.g. Massachusetts, New York and Michigan are way different from Florida, Arizona and California. Perhaps this has a lot to do with when developers descended on each of the aforementioned states and came up the idea of dumping significant maintenance responsibility on all volunteer HOA boards, as a way to facilitate City Council approval of their corporate goals to make not a little but instead make mountains of money.

[snark]Because money is what buys happiness. [/snark]

Lou,

Attorneys offer inaccurate advice all the time - because they are paid to do so.

Not all are this way - but, enough are to warrant this consideration.

Lawyers are PAID to do what you want them to do... Just ask them. They will tell you. Then quickly walk away. Why? Your NOT a legal expert THEY are! Why would you do what an unlicensed non-legal person tells you to do? It makes me question your ethics as a lawyer.

I say this because have taken legal courses in college and have dealt with many lawyers. They are NOT all equal and you do need to do your research. Educate yourself on what you want the result to be and if it is achievable by legal means. Otherwise your asking for more trouble and less money in your wallet.

Yes, thank you, Augustin D. I think you are correct on all matters. While I understand our bylaws are old, many of them are still pretty good Numerous lawyers have looked at them and, of course are interested in amending etc. 1. It is difficult to get 2/3 vote in a fairly apathetic community. We tried it and it failed. 2.Lawyers (more than 2) have looked at our bylaws, master deed etc. and can only say our Architectural bylaws are not usable and this has been known for years and nothing has been done about it. As far as the rest of the bylaws, they say they are subject to reasonable challenge etc. 3. The board refused to act on anything. So, I know, slowly changing the board is a good option, and it may take many years, so what do I do in the meantime?

I am aware of the Michigan Condo Act as well. So here is my question about Section 450.2525, Act 162 of 1982, Sec. 525. Taking Action Without Meeting; consent. I am assuming it is in effect at this time, am I correct? I also see that it indicates we need unanimous consent...which means all directors need to consent (or vote yes) correct? We vote by email to pay for things and requires just a majority. What we are doing is not allowed, right? 2. It says "the written consents shall be filed with the minutes......I never see any written anything and, I would think these votes should be in our minutes somewhere. Am I accurate in this assumption? Thanks again for all your expertise!

You are - it means Original Poster. :-)

It is not uncommon for docs to have "illegal" things in them such as No Sale Shall Be Made To a Person Of Color was quite common. As it is now illegal, there is no need to pay attention to it. That said it being illegal does not make the rest of the docs illegal.

You cannot enforce illegal things in the docs but you can enforce other things in the docs.

JohnC46's argument also crossed my mind and may be completely on-point here. But without seeing the Michigan condo's Bylaws in question, I hesitate to commit fully against the condo attorney's position here.

I think it's time for another attorney because that is almost certainly wrong.

So, Mr. AugustinD, would you please provide for me your definition of "selective enforcement?" I would appreciate it very much. Does it apply to just a single bylaw or covenant...using it on one co-owner perhaps, and not another. These nummies think if you select one bylaw and enforce it on a co-owner, you can't enforce any other bylaw on anyone. I thought it was if you enforced one bylaw on one co-owner, you would need to enforce that bylaw on any other co-owner who was violating that bylaw. If you didn't, you could be sued for selective enforcement. I think I am correct, yes? So.................you can see what I am up against.

Nowhere in that case is the word "selective" used. Capricious, yes. Selective, no.

Same difference. From http://communityassociationmanagement.com/c58-rules/c60-violations-and-enforcement/selective-ccr-enforcement/:

There are two types of selective
enforcement: 1) when an association acts arbitrarily by
enforcing some covenants but fails to enforce others; and 2)
when an association acts arbitrarily by enforcing the same
covenant differently against one owner and another. The best
reasoned case on this issue is a case from the Supreme Court
of South Carolina, Palmetto Dunes v. Brown. In that case, the
association’s covenants vested its Board with the power to
approve or disapprove construction plans based on purely
aesthetic considerations. Relying on that provision, the Board
denied an owner, Brown’s, new home construction plans on
the basis that the plans submitted by Brown showed a garage
that “overpowered” the rest of the house. Brown argued to
the Court that the Board’s decision was unreasonable and
arbitrary, in part because the Board had approved two other
similar houses.

Thanks for your remarks. I agree our board should not be conducting business for paying bills by email. However, shouldn't the expenditure be approved (generally speaking) BEFORE it is brought to the board for approval of disbursement? Your comment sounds like it is ok to do something that is a cost to the Association before presenting the "bill" to the board. The board needs to have approved this expenditure first, and then then bill is presented to the board by the treasurer for approval of dispursement. Right>

The only bylaw I can see that might be as you describe as conflicting is actually a "shed" issue. The by-law states: no carports, detached garage or other out-building shall be erected,placed or permitted to remain on any unit." I think this applies to sheds, what do you think? So, co-owners have attached these sheds to the back/side of their garage and say has satisfied the bylaw requirement by be "attached." I think not, what do you think? There is not anything in any other bylaw that talks about outbuildings or sheds. This is the only one. Actually our bylaws are few and fairly well done, I think. But I am not an attorney.....

We were told many years ago that our Architectural restriction control bylaws were basically null and void because after the section goes through all the approval requirements, in writing, , review of architectural design etc. a whole long paragraph, it says, a typo error, I think, that the section shall "NOT" require Association approval of .... I am convinced it was a typo as without this word, it would have made perfect sense. So, what would it take to get this one word, "not" removed. We do need these controls to be in place and the community, bless it's sole, has kept their residences in compliance so far. But there has to come a time where someone might want to paint their garage door purple and we will be in a crisis. What do you suggest?

Again, my thanks to everyone of you guys and gals who provide informed and helpful replies to our sometimes, "silly" but serious to us, questions and comments. Much appreciated.

This is great, SueW6. Thank you. I understand this and yes we do have a budget. So if the board decides to get a lawyer....do you go through the bidding process with this as there is no budgeted funds for legal expenses, or maybe a small amount of 300 dollars. ???? And secondly, if the budgeted amount is exceeded or changed significantly, what is the process there? Thank you.

A great idea. where would we find one? But...doesn't the board gave to approve this expenditures and get 3 bids? Where is the language concerning 3bids ??

Melissa P1 Yes we have fines,$ amounts etc. and have used them very infrequently. I am not familiar with CC & R's as I only have a booklet with our master deed bylaws and our other restrictions which we refer to as bylaws as well.

Lou,

Prior to discussing further you need to have your Bylaws in hand. Your CCRs in hand (or whatever Michigan has for this document). Your Articles in hand. Your Rules and Regulations in hand. And, any architectural docs in hand.

You need to read and understand Michigan statute for HOA/POA/COA (your category).

I am older, so have a little patience, will you please John C 46? I have read our documents many many times as well as non-profit corporation acts, Michigan Condominium Acts, Roberts Rules, etc. I am not "shooting from the hip" I am telling you what I know and asking questions about what I don't know and have actually learned a great deal from others who aren't accusatory, but instead are making a effort to understand and answer my, perhaps silly to you, but not to me, questions. Shame on you for being judgmental and accusatory.

George, nothing is clear anymore. We all want simple answers and many just aren't aware of all the specifics pertaining to by-laws, CC&R's, state statutes that apply, The Condominium Act, etc. I am sure you are not surprised by the lack of information easily available and the lack of knowledge, in general, as well.

I am a new member, I knew nothing, I have spent hours and hours reading and trying to understand what and if our old bylaws are enforceable. Studying laws, acts, asking questions of anyone who might be able to shed some light on these topics. It is very complicated. Obtaining legal opinions, is just that, "opinions"....many time biased toward spending huge amounts of money to update. And yes! Maybe that is the way to go, maybe not. Maybe there is an in between where some bylaws can be updated and others are ok. Finding a lawyer, especially during this Pandemic, to do such a thing, is extremely difficult, especially when you have a board who wants to oust all the bylaws and allow co-owners to do anything they please.

I am in a difficult situation and have been helped tremendously by HOATalk. I have been treated in a respectful manner most of the time and have ignored disrespectful interactions a few times, because I understand this is a voluntary (am assuming this, maybe am incorrect) group with great knowledge about HOAs and their complicated tasks. I know it must be frustrating to you all, at times, to receive, what you deem, as "mistaken ideas, have no document copies, or don't know the difference between bylaws and CC&Rs." I am not in that realm of questioners, but I do understand how you might think that.

Just ask that you take into consideration all the thousands of details you have learned over the years and how, people asking may actually not know hardly anything, even though they have spend many, many hours reading and trying to understand the complicated and unrecorded "rules" applied to the thousands of Associations. I am sure it is frustrating for you and others, but believe me, the questioner is oftentimes, in good faith, trying to understand and learn what they can and can't do and appreciate your patience and knowledge base and subsequent instruction and advise.

One simple question I have is: Can an Architectural bylaw be easily amended or changed when it has only one word in it "not" which disallows the entire bylaw instruction. We have been unable to use any Architectural bylaws for years because of it. If that word was removed (I think it was accidentally inserted), it would allow us to exercise these important regulations that pertain to the appearance of our homes and help maintain the value. as you might understand.

Again, thank you for your patience and understanding and for thinking about what I have said.

Thank you, Bill H 10, I have read in Article XX, Amendments, Proposal: "Amendments to these bylaws may be proposed by the BOD of the Association acting upon the majority vote of the Directors or may be proposed by 1/3 of more of the co-owners by instrument in writing signed by them." Then it goes to a Meeting section, and then to Voting section which states "These bylaws may be amended by the Co-owners at a regular annual meeting or special meeting. it needs not less than 2/3 of all co-owners.

So, I was excited when I read the first part thinking the BOD, with a majority vote could amend the bylaws. But as it goes on it seems to say, they can propose but not implement action without 2/3 vote. Do you read it the same way?

Interestingly, 7 years ago, they tried to update some bylaws and we lacked by single digit votes enough to pass it, so there was positive interest at that time.

As a board we are allowed to implement "rules and regulation" as long as they don't change or interfere with the intent or meaning of existing by-laws. Guess there is no way to get around the Architectural bylaws in any meaningful way, right?

Thanks again.

Typically it will take 2/3rds or more of all owners agreeing to make a Covenant/Deed change. For Bylaws it is typically 51% of all owners. BOD's alone can make and rescind Rules and Regulations. Many confuse the type of docs. Often lumping them all together and calling them Bylaws.

Many do not understand when it says something like 51% OF ALL OWNERS. They often read it to mean 51% of those at a meeting.