Covenant enforcement - 100% or nothing

Started by ArtB1 • 12 replies • 476 views

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ArtB1 (Florida)
Posts: 97

Posted:

First thanks to the group for the comments on fining. We are currently rewriting our policies.

During that process a question was raised.

If you do not enforce each and every covenant (and ARC rule), does it invalidate all the rules and covenants?

As an example, our HOA prohibits golf carts. But next weekend, some homeowners want to drive Santa around in a golf cart.

Some of our members are calling this selective enforcement and saying we cant enforce any rule.

I know I am over simplifying the issue but how have others dealt with the selective enforcement issue?

Thanks

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By ArtB1 on 12/16/2020 2:07 PM

If you do not enforce each and every covenant (and ARC rule), does it invalidate all the rules and covenants?

No, it does not. I think this comes up here a few times a year. "Selective enforcement" refers to enforcing, say, Rule #17 against HOA Member Jane but not enforcing Rule #17 against HOA Member Sally.

Count on it though: Based on my reading here, many will not understand this.

MichaelS56 (Minnesota)
Posts: 859

Posted:

If there are Rules and or Regulations that the Board is not enforcing then delete them. If there are Covenants that the Board is not following then the Board is not doing their duty that the owners expect to be done.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Augustin is correct about the definition of "selective enforcement".

Our Declaration actually contains a statement statement that failing to enforce any individual provision of the Declaration does not preclude enforcement of that item or of any other provisions in the future. When we amended a couple of the restrictions in the Declaration, our attorney also included statements saying that the un-enforceability (is that a word?) of any section of the restriction does not invalidate the remaining portions of the restriction.

It may not be legally necessary to spell this out but I think it's a good idea to have something to point to if anyone objects. Cuts down on arguments.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Oh, and Santa can do whatever he wants since he's not a member of the HOA. :-)

(The item below makes the rounds every year around this time - enjoy.
https://www.issaquahhighlands.com/ho-ho-oh-no-santas-hoa-compliance-letter/)

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By CathyA3 on 12/16/2020 2:35 PM
Augustin is correct about the definition of "selective enforcement".

Our Declaration actually contains a statement statement that failing to enforce any individual provision of the Declaration does not preclude enforcement of that item or of any other provisions in the future. When we amended a couple of the restrictions in the Declaration, our attorney also included statements saying that the un-enforceability (is that a word?) of any section of the restriction does not invalidate the remaining portions of the restriction.

It may not be legally necessary to spell this out but I think it's a good idea to have something to point to if anyone objects. Cuts down on arguments.

This is my understanding.

TimB4 (Tennessee)
Posts: 21,062

Posted:

As has been posted, the answer is no.

Typically, the wording is that the HOA has the authority to enforce but not the requirement (similar to all owners). However, if the Association enforces a specific covenant/rule, then they must enforce that rule on all members.

This is our wording from the covenants:

The covenants and restrictions of this Declaration shall run with and bind the land, and shall inure to the benefit of and be enforceable by the Association, or the Owner of any Lot subject to this Declaration, their respective legal representatives, heirs, successors and assigns . . . .

TimB4 (Tennessee)
Posts: 21,062

Posted:

BTW - when we redid our documents, it took two years.

We formed a committee to write a draft.
The committee provided the draft, highlighting the changes and the reasons for the changes to the board.
The board reviewed and made changes.
The board published the draft to the members and asked for comments.
The Board then held a special meeting of the membership to discuss the draft and the inputs.
The Board then made changes based on the membership input and created the proposed document.
Once this was completed, the board sent the proposed document to the attorney for a legal review.
The board then made changes based on the legal review.
The Board set a special meeting of the membership to vote on the changes (sending the proposal to the members).
Once voted on (you have to decide to vote for all or none or for each individual change), the board created the final document for signatures, recording and publishing to the members.

TimB4 (Tennessee)
Posts: 21,062

Posted:

One more thing, the committee, prior to it's rewrite, actually walked the property to identify all violations of the policy.
This was helpful as if a majority (or fair amount) of the members were violating the policy/rules this was an indication to the committee that perhaps that rule needed to be modified or abolished.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By CathyA3 on 12/16/2020 2:39 PM
(The item below makes the rounds every year around this time - enjoy.
https://www.issaquahhighlands.com/ho-ho-oh-no-santas-hoa-compliance-letter/)

This is hysterical. Thank you.

LetA (Nevada)
Posts: 2,679

Posted:

One thing to ponder, many of the covenants are written ambiguously, and could cause some problems if either party pushes the issue. For example, many covenants have a provision that " no automotive restoration work yadda yadda yadda. Some BOD' can be tough and fine you if you lift the hood just to check the oil. My HOA, the board and management is understanding that some people don't have money for mechanics and they want to do their own work. We even understand that we live in a desert, and closing the garage door when it is 110 degrees outside is just insane. Where it crosses the line is if people are pigs and do their work in the street or spill fluids on the driveway, or just blatantly being inconsiderate. That is when we feel it becomes a problem. Ya just need to look at the big picture.

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By ArtB1 on 12/16/2020 2:07 PM
First thanks to the group for the comments on fining. We are currently rewriting our policies.

During that process a question was raised.

If you do not enforce each and every covenant (and ARC rule), does it invalidate all the rules and covenants?

No. Selective Enforcement is only a consideration where violations of substantially the same nature are concerned. Just because you don't enforce pet restrictions doesn't mean you can't enforce a "no parking" restriction.

Quote:

Posted By ArtB1 on 12/16/2020 2:07 PM
As an example, our HOA prohibits golf carts. But next weekend, some homeowners want to drive Santa around in a golf cart.

Some of our members are calling this selective enforcement and saying we cant enforce any rule.

I know I am over simplifying the issue but how have others dealt with the selective enforcement issue?

No means no and in this case driving Santa around on a golf cart is against the rules. Your restriction/rule/covenant, however, could be worded to allow for limited exceptions to the rule.

Also keep in mind that "Selective Enforcement" is a defense someone may use if they think they've been singled out for enforcement on a per-case basis. It's something that may come into play on a case-by-case basis. It's not some triggering event that invalidates one or more rules/covenants forever once it happens.

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