Is it Selective Enforcement?

Hello,

I am a Board Member for the first time, and I am still learning but there are things that this Board is doing that I do not understand so I hope I could find some answers on this forum.

#1 - There is no information about the approved colors for replacement of windows on the HOA website, and there are white, beige or brown windows all over the community. Residents only find out that there is only one approved color (Bronze) when they submit an ACR. I feel that it's not good practice and that information should be available to residents. Can HO sue the Board because of lack of information of rules? There is no details about this in the bylaws.

#2 - Some residents have put in different styles of doors but when others submit the same type of requests, they are denied. If a rule is not enforced for some HO, shouldn't it waived for eveyone?

#3 - If a rule about common areas states that nothing can be added to those areas but have guidelines on the website stating that pots/planters are a nice addition to the common ares, and if more than 50% of residents are maintaining well their front yards with pots/planters for more than 30 years. Can the Board decides suddenly that they want to enforce that rule? My understanding is that a rule that is not enforced for a while, the Board would lose its right to enforce it?

Thanks so much for your feedback!

In general, it's better to give homeowners more information rather than less. So yes, the ARC standards should be published and made easily available (eg on a website and in the newsletter).

The problem with "selective enforcement" is that it's something that is decided by the courts. This gets expensive, and court cases can be a crap shoot no matter how solid you think your case is. So you need to pick your battles.

To make things even less clear, although courts have tossed out certain provisions as being unenforceable after they've been ignored, other courts have decided that no two boards will see things exactly the same way and "selective enforcement" is sort of the nature of this stuff. In fact, my governing documents have a statement saying that previous lack of enforcement does not preclude enforcement in the future - and I'm assuming other governing documents may have similar language.

I do think that at some point the board has lost the war altogether on certain things, depending on the numbers of owners who are not in compliance. It may be perfectly legal to start enforcing now, but it's also possible that this will generate so much bad feeling in the community that it's not worth whatever benefit it provides. Personal opinion: regulating flower pots is one of those things that seems to antagonize owners without providing much benefit.

Clear as mud, huh?

So... yes, selective enforcement is wrong and can make certain provisions unenforceable after a time. But as far as I know, there aren't any hard and fast rules about this - eg. x number of ignored violations after y number of years - it would take a court to determine this on a case by case basis.

If this seems to be a burning issue, it may not be a bad idea to take a look at your restrictions as a whole and see if they still make sense or if any should be amended or removed.

Thanks for your answer! This is very helpful!

I don't feel that the Board lost the battle, they have allowed people for 30 years to add pots/planters etc..., and they actually have encouraged homeowners to do it. So I am confused about the rationale to enforce it now. What is the harm at at adding flowers to make the community look better??? I have already submitted a proposal for creating some crystal clear guidelines for common areas, and ARC standards. Let's see how that goes, but I feel they are determined to endorse that rule, and if they do as you said it's going to generate a lot of bad feeling. People are already mad, and want that Board out so if they move forward with that enforcement, it's not gonna go well!

OK, selective enforcement is a very unclear topic but if a same board has never endorsed some rules, and they suddenly start, they need to provide a good reason!
I agree with you that preventing owners to put flower pots can only cause problems. Our community is in nature, and a wildlife preserve habitat. It's just unreal to do such things!

If they really want to do that, then the Board will need to increase landscaping then. We cannot leave front yards empty, that would look soooo bad!

Anyway, thanks so much for all this information. It's really helpful as I am a fellow Board Member!