In DE, is it "all or nothing" with enforcing deed restrictions?

Started by AudraL • 8 replies • 203 views

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AudraL (Delaware)
Posts: 12

Posted:

Hello, helpful people!

My question is pretty simple. I've tried to search for the answer online but haven't been successful yet, so thought i'd try here.
Without a big back story...the question is: Can a Board choose to enforce some restrictions but not others? I believed they could, but some neighbors are swearing that if a Board chooses to enforce ANYTHING, they have to enforce EVERYTHING, and that will get expensive with fines, court costs, liens, etc. So they should just not enforce anything. Anyone have insight?

TimB4 (Tennessee)
Posts: 21,059

Posted:

Audra,

You are correct. Typically, a board may choose to enforce some, all or none of the restrictions. However, if they enforce a restriction on one member, they must enforce that same restriction on all members.

Check your governing documents to be sure.

AugustinD
Posts: 1,027

Posted:

Audra, from experience, the authorities that might speak to this are the bylaws, Declaration and case law. Often the bylaws or declaration say the board has the right not to enforce a covenant.

For Delaware, I am betting you are correct. In my experience your neighbors are mistaken, probably due to a lack of understanding of the phrase "selective enforcement." In the courts, "selective enforcement" means enforcing covenant XYZ against owner Poslosky but not enforcing covenant XYZ against owner Chang.

On the other hand, boards generally do have an obligation to enforce covenants. On the third hand, if the expense of enforcement is too high, it's possible a court in some states would agree that the board does not have to enforce the covenant.

Is there a particular restriction (being enforced or not enforced) that is bothering people here? If you can provide it, this might give you better answers here.

AudraL (Delaware)
Posts: 12

Posted:

we're in the nominee stage of our HOA; voting for the Board will be next month. Basically a couple popular nominees are in violation of deed restrictions already (have ATV's, work vans, campers, boats) and a number of nominees aren't (because they actually like the restrictions). The ones who are abiding by the restrictions have concerns that Board members who are in violation themselves won't enforce the restrictions for the whole community that they themselves are in violation of, should they get voted in. So homeowners will have to confront their neighbors on their own, rather than have Board enforcement. The ones in violation have a "defense" of: "Listen, if we start enforcing one deed restriction, then we're gonna have to enforce ALL the deed restrictions, and that's gonna be a bunch of paperwork, costing a bunch of money, which will make our dues be super high. So, since we don't want to waste homeowner money, we it's better we not start enforcing anything." (But they say they'll still approve homeowner requests based on the restrictions...that they said they're not enforcing. lol)

KerryL1 (California)
Posts: 14,550

Posted:

How many will be on the Board? How many possibly will be violators? Why not campaign for those who do won't to uphold the restrictions???

TimB4 (Tennessee)
Posts: 21,059

Posted:

Sounds like a good excuse to anyone not in the know.

It's wrong, but it sounds good.

Ask them how much it will cost.

AudraL (Delaware)
Posts: 12

Posted:

we will have seven board members. there are several "factions", but voting homeowners don't really know of that. they are more groups of friends. some who have no violations and some who do. so even if one board member did have a violation, if their friends are on the board as well, they'd look out for him. those who don't have violations are letting homeowners know that, but then the ones in violation are accusing those nominees of smear campaigns. Lots of fun. lol

AudraL (Delaware)
Posts: 12

Posted:

that particular nominee just walks around saying how much he knows bc he was on another HOA board. people don't really challenge him bc they either assume he must know or find him annoying and don't want to engage. lol his friends sing the same tune bc they just say he knows.

AugustinD
Posts: 1,027

Posted:

Quote:

Posted By AudraL on 08/19/2022 6:52 PM
So homeowners will have to confront their neighbors on their own, rather than have Board enforcement. The ones in violation have a "defense" of: "Listen, if we start enforcing one deed restriction, then we're gonna have to enforce ALL the deed restrictions, and that's gonna be a bunch of paperwork, costing a bunch of money, which will make our dues be super high. So, since we don't want to waste homeowner money, we it's better we not start enforcing anything."

-- If these violators get on the board, then their board service may possibly be in violation of good standing requirements in the governing documents or state statutes. Ask, and I will check the relevant statutes as best I can.

-- If these violators get on the board, then they are going to do what they are going to do. But I think they should keep in mind one caveat: The instant Owner Sally Smith decides to sue Owner Joe Jerk for a covenant violation, not long after anticipate Owner Sally Smith to decide to sue the HOA for refusing to enforce the covenants. Then the HOA will have to pay an attorney to defend itself. A bylaw saying the Board has the right not to enforce the covenants does not always work as a defense. State law or case law can override such a Bylaw.

-- The violators and those who support the violations ought to do the right thing and seek amendment, via an owners' vote, of the covenants to throw out the covenants they do not like.

-- Unfortunately the above arguments are probably too complicated for these incompetents to understand.

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