CC&R Enforcement Styles

Started by CjP2 • 12 replies • 462 views

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CjP2 (Idaho)
Posts: 33

Posted:

I live in a 55+ community with 52 homes, and I purchased my home almost 2 years ago. We have an involved, responsive HOA Board that helps govern our small community. So far we have not needed to hire an external property management company.

I had a chance to review the community’s CC&Rs before I made an offer to purchase my home, and I was encouraged about some of the rules or restrictions intended to protect property values; however, based on past experience with numerous HOAs, I should know by now that each HOA is different and you really need to experience living in a community to understand the level at which any rules are enforced: proactive governing or reactive governing. Both types can be unhealthy at extremes. The only things our association governs proactively are exterior improvements and landscaping.

The home I purchased needed a few outdoor repairs including removing overgrown weeds, moving garbage cans stored outdoors into the garage, replacing lower siding severely damaged by irrigation water, and replacing dilapidated rain gutters. All of these things were clear violations of the CC&Rs. When I asked the HOA Board why they had not asked the previous home owner to correct them, I learned they do not inspect the neighborhood regularly for possible CC&R violations. They only look into potential violations if a home owner files a complaint with them (reactive governing that seems like pitting neighbor against neighbor). Apparently, no one had complained about the undesirable condition of my home.

The following articles from our CC&Rs seem to apply in this situation. The last sentence of Article 9.1 might be intended to eliminate any situations that could be interpreted as “selective enforcement.” I could be wrong, but I’m interpreting Article 9.3 to mean that the HOA Board has an obligation to enforce the CC&Rs consistently to help protect property values; however, maybe they’re simply choosing the other option by appointing Owners as the enforcers instead.

**Article 9.1: Enforcement. The Association or any Owner, shall have the right to enforce, by the proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration. Failure by the Association or by an Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter.**

**Article 9.3, Interpretation. The terms, covenants and conditions hereof are to be read and interpreted consistently and in a manner to protect and promote property values.**

I searched this forum for similar discussions but did not find any that fit this one. Has anyone experienced this type of CC&R enforcement? Any pros or cons? If our HOA Board is leaving it up to home owners to monitor conditions that could negatively affect property values, I guess I’ll need to speak up and risk any negative consequences from my neighbors. Or maybe they can keep complaints anonymous. Thank you for any insights or advice.

WendyM5 (North Carolina)
Posts: 1,522

Posted:

In north carolina the courts have ruled the BOD do not have to enforce CC&R's.

CC&R's make a home look nicer. They generally have nothing to do with property values unless there are extreme in nature. Just because you like everyone to have Zoyzia Grass in their front yard, doesnt' mean a potential buyer cares. Sure some buyers might care, but there are enough that don't care to make it a mute point.

it is pretty common clause that allows one homeowner to sue another home owner. that's actually a good way because then the board doenst' destroy the community over the issue. I'm not exagerating either. There was an HOA that was destroyed because an election sign was 3" too tall, only people that won were the lawyers who laughted all the way to the bank.

vis ta vie

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By CjP2 on 02/02/2023 11:49 AM
The last sentence of Article 9.1 might be intended to eliminate any situations that could be interpreted as “selective enforcement.” I could be wrong, but I’m interpreting Article 9.3 to mean that the HOA Board has an obligation to enforce the CC&Rs consistently to help protect property values; however, maybe they’re simply choosing the other option by appointing Owners as the enforcers instead.

**Article 9.1: Enforcement. The Association or any Owner, shall have the right to enforce, by the proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration. Failure by the Association or by an Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter.**

**Article 9.3, Interpretation. The terms, covenants and conditions hereof are to be read and interpreted consistently and in a manner to protect and promote property values.**

I searched this forum for similar discussions but did not find any that fit this one. Has anyone experienced this type of CC&R enforcement? Any pros or cons? If our HOA Board is leaving it up to home owners to monitor conditions that could negatively affect property values, I guess I’ll need to speak up and risk any negative consequences from my neighbors. Or maybe they can keep complaints anonymous. Thank you for any insights or advice.

Pros of a HOA board not actively seeking to remedy violations of the covenants:
Less work for board members. They are not paid anything. If there is meaningful infrastructure then all the admin associated with this will keep them plenty busy. Also owners may feel more comfortable with covenants not enforced.

Cons:
More and more courts and statutes expect HOA boards to enforce covenants as a matter of law. Meaning that if neighbor Jones is angry that neighbor Chang is keeping a non-functioning, older rusted vehicle in her driveway, violating the covenants and demands the HOA enforce the covenant, then Jones might be able to sue both the HOA and Chang, for violating the covenant and not enforcing the covenant. This has absolutely happened many times. The other con is that failing to enforce after many years such that it's obvious from driving around the neighborhood that the covenant is not enforced may result in a court declaring the covenant abandoned.

I gather you want to see the covenants enforced. Now you are going to hit the wall that so many come here to discuss. Said wall consists of first, the court system and a line of attorneys happy to create a dispute and accumulate billable hours for a downpaymnet on that second vacation home. Second, the wall includes the difficulties of getting on the board with people who feel as you do.

As a popular Indianan here likes to point out: Buying into a HOA is like becoming business partners with the guys at your local bar. I think most of the HOA veterans here agree.

I do not think you quite have a handle on what "selective enforcement" means in HOA land. I will leave this for another time.

CathyA3 (Ohio)
Posts: 6,299

Posted:

"Selective enforcement" means that the board dings one person for a particular violation but lets others slide. It does not mean that they enforce some of the restrictions but not others.

Enforcement can be tough, and is often more art than science. Some requirements and restrictions are black and white (such as no on-street parking) while others are more vague (such as the requirement to keep your property in good repair). Obviously, the vaguer the rule, the harder it is to enforce (and the more people will argue if you try). Finally, some CC&Rs are poorly written in places. For example, we amended our parking restriction because it wasn't enforceable in its original state.

In addition, when things devolve into court cases, the courts often state that the board must act "reasonably". Makes sense, but the trouble is that "reasonable" is also vague, and different people will have different ideas about what it looks like. Also, the composition of the board will change over time. So expecting standards to remain constant is not realistic.

When I was on the board, our guidelines were "nobody wants to live in a police state" and "failing to enforce the CC&Rs will let the community go downhill". We tried to hit a middle ground. However, reasonable people can disagree about exactly where that middle ground is. The law and order crowd may have issues with this, but unfortunately I think this is where "reasonable" will be found.

(FWIW, our attorneys cautioned against over-zealous enforcement. Daily walk-throughs of the community was strongly discouraged, and even weekly was pushing it. The firm's stated goal was to keep their clients out of court, and overdoing enforcement is more likely to result in a lawsuit. Our governing docs also permit individual owners to enforce our CC&Rs themselves via personal legal action, so the duty doesn't fall 100% on the board.)

JohnC46 (South Carolina)
Posts: 14,265

Posted:

When we become aware of an issue either by a BOD Member observing such (most common) or a fellow owner complaining, our informational or violation letter goes out under our Management Company signature thus one does not know who the original complaint came from.

There have been discussions on here that a violation complaint must be signed. Even if we receive an anonymous complaint, someone on the BOD will investigate it first.

Our MC does a monthly tour but will not send out any notices without first touching base with our BOD.

CjP2 (Idaho)
Posts: 33

Posted:

I can definitely emphasize with Board members who try to find that reasonable middle ground and admire the ones who manage to pull it off most of the time! Changing the dynamics of those members as new ones are elected makes it even harder. The very last thing I would want is to sue my neighbor or drag attorneys into an issue.

As of today, I have no issues or any covenants I want to see enforced. I was surprised to learn how our Association handles potential violations--namely that they don't enforce the CC&Rs unless someone complains--so I was trying to find out from some experts if that was common practice. Apparently it is. Every HOA is different.

This isn't a discussion about the meaning of "Selective Enforcement," and this is probably getting off topic, but I found the following descriptions.
Selective enforcement is...

...enforcing certain restrictions on one or more homes, but allowing those same violations to exist at one or more homes without enforcing them.

...when an HOA board chooses at their own discretion which rules to enforce, who to enforce them upon, and how to punish violators.

...when a board enforces, or is perceived to enforce, rules against some homeowners and not others. It also occurs when rules are unfairly or inconsistently enforced throughout the community.

Part of our Article 9.1: Failure by the Association or by an Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter.

Instead of interpreting this as eliminating situations that could be interpreted as “selective enforcement,” perhaps this sentence is a way to make sure an Association is able to enforce a covenant or restriction at a later time even if they are choosing not to enforce it at the present. This could make it harder for a court to declare a covenant abandoned.

Thanks, everyone, for your comments and information.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By CjP2 on 02/02/2023 2:06 PM

Selective enforcement is...

...enforcing certain restrictions on one or more homes, but allowing those same violations to exist at one or more homes without enforcing them.

This is the definition used as a defense in litigation.

I do not think the other definitions have any value except to confuse people. Like making some people, tagged with a violation and fine, yell, "Selective enforcement! The HOA cannot fine me for the junker car in the driveway when the HOA is not fining my neighbor for having a sign in the window." This is in fact not what selective enforcement means.

KerryL1 (California)
Posts: 14,550

Posted:

Article 9.1: "Failure by the Association or by an Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter."

CjP2 wrote: "Instead of interpreting this as eliminating situations that could be interpreted as 'selective enforcement,' perhaps this sentence is a way to make sure an Association is able to enforce a covenant or restriction at a later time even if they are choosing not to enforce it at the present." I think you're right, CjP. Such a phrase also is in our CC&Rs and I suspect in many. Here's ours: "Failure of the Association, or any Owner to enforce any covenants or restrictions herein contained shall in no event be deemed a waiver of the right to do so thereafter."

In my HOA of 200+ units in a condo building with an onsite manager and manager asst., they tend to not send violation courtesy letters or invitations to hearings. Other than certain common area parking violations that are visible from the PM's office and our staffed car entry gate, I'd say 90% of the time an owner reports an alleged violation to the PM who confirms it, takes pics of it, if possible, and sends a courtesy letter or invitation to a hearing. The owner reporting is no longer the one who files the complaint, the HOA is.

Often the letter cures the violation. There have been no court cases or threats of such in the 22 years this HOA has existed.

CjP2 (Idaho)
Posts: 33

Posted:

Thank you for this information. Your system sounds like the perfect way to approach a potential violation.

TimB4 (Tennessee)
Posts: 21,059

Posted:

I am interpreting your 9.1 article this way:

1) The Association or any owner has the right but not the requirement to enforce the covenants.
From what I have seen, this is fairly common and allows an owner to resolve the issue through the courts if the Board won't take action.

2) Enforcement shall be done via the courts (no monetary penalties).
This language was a big thing in Virginia. The courts actually stated that because the documents specifies how to enforce, all other methods of enforcement (monetary penalties) are not valid. I've written about the Farran case in the past.

3) Failure of a current board or owner to enforce does not prevent a future board or different owner to enforce.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By TimB4 on 02/03/2023 1:57 AM
I am interpreting your 9.1 article this way:

... snip ...

3) Failure of a current board or owner to enforce does not prevent a future board or different owner to enforce.

FWIW, my community's CC&Rs have a similar statement. They also say that failure to enforce one portion of the CC&Rs does not make the rest of them unenforceable - and that if one part of the CC&Rs is deemed to be unlawful, this does not make the rest of them unlawful. (We're big on disclaimers.)

We've seen some court cases where some portions of the CC&Rs were ruled to be unenforceable after a certain period of time (ie. the covenants were abandoned). I wonder how that works when you have language like the above. Different states? Different communities with different CC&Rs in the same state? Different judges with their own points of view? I may do some digging...

CathyA3 (Ohio)
Posts: 6,299

Posted:

More musing on enforcement in general...

It isn't only boards that have different notions. Homeowners themselves have different opinions on how much they're willing to live with.

Some people seek out HOAs and COAs *because* there are rules. They're happy to know that their neighbor won't be allowed to turn his property into a landfill, and they're happy to live with some limitations on their own behavior to have this protection.

On the other hand, you'll have some who firmly believe that their home is their castle, they're the lord of all they can see, and any limitations are An Affront to the Laws of God and Man and Shall Not Be Allowed to Stand. These folks will make everyone miserable, not least themselves, and you have to wonder what they were thinking when they bought property in an HOA. Know thyself, is what I'm saying.

Anecdote: One day I was working in one of our condo model homes and was showing a young couple around the community. The gentleman asked me if he could put a fire pit in his back yard or if "we were going to be a-holes about it". I informed him that we didn't need to be a-holes because the fire pit violated fire codes, and the good folks at the local fire station located less than half a mile away would be handling the a-holery for us should it be needed. Or something to that effect. Professionalism can be such a challenge at times... I didn't point out starting a fire while breaking the law may cause his insurer to rethink their relationship with him, and that for a-holery it's sometimes tough to beat a stubborn insurer. But I digress.

Back on the topic of selective enforcement, I think that a low level of it is baked into the process. Different board members with different ideas on what is reasonable enforcement - and even the same board member changing their opinions over time as they gain experience - pretty much guarantee it. The language in CC&Rs stating that failure to enforce does not preclude enforcement in the future acknowledges that it exists and even is to be expected. The question is how much is too much? And we're back to "reasonable" again.

This was the one area of board service where I felt like I could get everything right and still get it wrong.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

People often overlook the fact your documents may say you can find but then lack any kind of definition or amounts. That is when have to create a fining schedule available to all owners. That can get quite complicated. Fines can not be the basis of foreclosure. If your HOA does the practice of applying dues towards fines then maybe a lien can be filed for non payment of dues. However I disagree with that method. Fines are like speeding tickets. They are not for profit but for punishment.

Another myth is that HOA are formed to keep home values. They are not. Values are based on real numbers. A HOA is to keep the home ATTRACTIVE to potential buyers so they sell.

Our HOA we could enforce corrections by correcting the issue and sending the owner the bill. If they did not pay it, then we could fine for that bill. Yet again complicated.

Most of the time pointing out a rule and letting people know why it is a rule corrects it.

Former HOA President

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