Selective Enforcement

We have a gentleman who continues to send pics of one neighbor, parking his commercial van in sight, however, there are many commercial vehicles parked in the community. We have to address this violation, due to it was reported. Do we have to fine all residence with commercial vehicles, or is this considered selective enforcement? And if it is does the resident have any legal action?

If so many are disregarding this particular rule, and the Board is not enforcing it anyway, then why even have it?

Is is cosmetic? Is is health and safety issue? WHY isn't the Board enforcing it?

In the meantime, a resident who thought he would have a nice view out his front window has to look at a commercial vehicle all evening.

The least the Board can do is to ask itself why it is refusing to enforce its own rules.

Do that before this resident sues the Board.

have been a victim of “Selective Enforcement” in my community.

I have had my petition box ripped down, two flat tires, my van has been broken into, My website has been compromised 3 times (http://www.neighborhoodlink.com/centennial/hmca/)
, our building has had the flower and pictures taken on 3 occasions, been defamed in the monthly newsletters AND I have received 3 violation notices, one courtesy notice and one cease and desist notice.

I have been flipped off by one of the former Board of Director Treasurers and been called a “Front Man”

I have checked the minutes from the last year and found that only I have received so much attention because I started a petition, questioned the Budget spending, proposed new assessments, questioned the roof leak issue, wanted a beatification committee along with wanting to get a new election to replace a board of director who have exceeded there terms.

I have found that you can get more with honey than vinegar and thats sometimes its better to keep quiet and do nothing like sheep in a pasture. Because if one tries to fight the Board which acts like its own country they will try to squash you quickly.

I have also found that the Selective Enforcement imposed on me as a community member in good standing pulls the blinds down for all to see the real issues that the community is facing.

Well, now, not quite sure if that's a good thing or a bad thing!

It's my understanding that "selective enforcement" is a defense that someone will try to use (or an offense, I guess, in some cases) against a board for "selectively" enforcing deed restrictions.

The selective enforcement can be either only enforcing the same or similar CC&Rs against some residents and not others, while knowing, or while having been expected to know, that other residents were also violating the same CC&R and were not also enforced against.

It can also apply to a board enforcing SOME deed restrictions, but consciously selecting or deciding, for whatever reason, to NOT enforce others.

For example, enforcing against on-street parking violations but not against people who violate garbage can storage CC&Rs.

Select enforcement type of behavior used to be easier for residents to bring forward and use to try to avoid receiving penalties or fines for violations they have been notified on.

When that happens, and the resident wins its case, it becomes harder and harder for the board to enforce ANY deed restrictions and the CC&Rs risk being rendered impotent.

That's why it's important for a board to recognize its responsibility to the integrity of the governing documents and each board member must make it his and her fiduciary duty to enforce ALL CC&Rs against any and all complaints they receive.

In our case, we do not "police" the subdivision, so there is no way we will ever "catch" all instances of any CC&R violations. However, we have a solid and well-documented history of responding to EACH and EVERY complaint or notification of potential violation that is reported to us.

We've had people insist we are being too "petty" on some issues (garbage cans). However, our response to that is, ANY CC&R that the membership considers "too petty" they are more than welcome to amend the CC&R to remove it. We have a set of instructions for how to amend the CC&Rs all ready to go and we hand it over when the resident starts on the soap box.

However, we will and do continue to investigate each notification and enforce every single one that we find valid. We have no choice. That is our primary duty as it is the key to maintaining the integrity of our documents.

There are times, however, during certain emergency situations where it becomes prudent to suspend enforcement of some CC&Rs. For example, during the recent tornado storms, it would not have been unreasonable to suspend some of the "duty to maintain" against residents who were overwhelmed with mother nature's fury. But those types of situations would be or should be well documented as well.

"IF you allow commercial vehicles to remain even though it is against document dictates, as another poster suggested, why not amend the document restriction with a vote from the membership?"

This is exactly what I tried to have done when I was on the Board (resigned, back on the Board as of this past Monday) I had a renter move in next to my TH...he had a Air Condition van w/all the signage. He also cleaned out his van on the property and left debre around the garbage can. We also had another commerical truck w/ signage and ladder on the side of his truck...At a meeting I reminded to the Board that is was a nono in our Convenants...The President (she controls) wouldn't do anything because her closest friends boyfriend was the owner of the truck...I ask her to call a meeting and change the Bylaws if she didn't want to enforce the rules...Nothing was ever done. the renter finally moved but the truck is still there (he parks in the cul de sac) And today he is the V. President allowed to break the rules....Two weeks ago the Board had the MC send out violation letters to HO who had satellite dishes that can be seen from the street to move them or else...Guess which HO was not on that list...the V. President....What can I do as a new Board member to get the old Board members to enforce out docs?...Nothing, it's always 4 against one.

Michele..."If you don't want to go down that road (yet), then you may have to get active and obtain the support of the membership to do the process laid out in your CC&Rs for removing the board."

I couldn't get any more active in the community than I have been from the very beginning...In another post I told about the letter I wrote to all HO about all the things that were going on in our community. I received two e-mails and 1 phone call out of almost 77 letters. Now just how interested is that? I have attended every meeting.

As I said I was on the Board before, resigned (after I did it I was sorry) I tried over and over to get back on but this Board would not let me volunteer because they have formed a clan and anyone who went against them was out...I did what I had been told on this forum, I ask for proxies and received some and also got all the votes from the few HO's that do attend meetings (except from the BOD's). So this Board could not keep me off because as hard as I begged, I was the only new HO to run for that empty spot.

At this Annual meeting I brought up all the misdeeds this Board had done to this community...selective enforcement of violations, never caring for our common area in going on 3 years (my husband and I did the weeding in the park and the pruning, they have never sent the HO's any info, financial or otherwise, they borrowed from our small reserves twice ($5000.), didn't fund the reserves for over a year, our delinquent accounts kept going up and now stand at fourteen (14)w/a total of over $14,546.00. The old MC charged interest for delinquent accounts and liened on a few..This MC has not added any interest, so we have some HO's being charged interest and others not (you guessed it, on that list was the VP and the secretary). I had told them that this could open the Association up for a law suit, again, this didn't move them at all. Knowing that the HOA budget had run out of money a month to six weeks before our fees were due(semi annual), SHE fired our 2nd MC in less than two year and hired a new MC that charges nearly DOUBLE what we were paying. If we couldn't meet our bills before why would she even consider doing this to the HO's....All of this I stated at the meeting and not a word from the HO's sitting there....I guess the only thing that will wake them up is when this Board raises the dues and calls for a "Special Assessment".....Granted, I am on the Board now but the same four are in control. I will bet they will never even speak to me until a meeting is called. This is something else they did, have secret meetings. They raised our dues this way and they reduced our reserves in a secret meeting and still didn't paid into it.

Just how much can I do being a Board member, can I still write the HO's about what is going on w/the Board. Can I continue to get HO's interested in making the docs be enforced, continue to tell them what is going on. Or do I have to keep my mouth shut because I am on the Board...Would I be more useful off the Board....At least I can keep my eye on the money being treasurer.

HOA still have no help from the State...we have no one to complain to, to report all these knowingly and willingly misdeeds being done to the HO's of my community and the Board holding no accountibility.

Do you have an MC? What's good for the goose is good for the gander! If the President or for that matter any member violates the CCR's they should be enforced.

Now there is a line of being too strict or too passive; kinda sounds like being a mother with her child. Be that as it may; the CCR's are black and white. They were written for everyone. They see no color or gender, therefore is fitting for all members of that association.

I have said all of that to say this; sometimes what may seem like selective enforcement is not. Only the board and the MC knows how many letters they write within a month. Recently a HO received a letter about a violation and went around the entire neighborhood writing down every violation that was just like hers. She emailed me and stated on what about house #111, #123, #234 and on. When she was finished I told her not only did they receive letters too, but for the entire month of March 309 letters went out to her community for violations.

Once she heard 309 letters went out for compliance, she realized she wasn't the only one. You don't see the work behind the scenes, the complaints received, or the on-site inspections that were made people assume they are the only ones.

I can assure you our Presidents, VP, treasurers, secretary or member at large have all received a letter once or twice from us. Its all in the delivery and has to go on a case by case. No two stories are the same.

Bob, I can see that you only skimmed my previous posts and did NOT read them very closely.

In no way did I say your board was not engaging in "selective enforcement." I don't know if they are or aren't. All I know is what you told me.

If their vehicles are the same class/type as yours, then they are and they are traveling down a precarious path if that is true. I already clarified that. More than once. However, it really doesn't matter if they are practicing selective enforcement because whether someone else is in violation has no bearing on whether or not any other owner who is violating needs to clean up his/her act.

I think you really need to go back and re-read what I posted.

Especially the part where I said we SUCCESSFULLY prevail against the "selective enforcement" claim by residents we enforce violations against because WE DON'T ENGAGE IN SELECTIVE ENFORCEMENT.

I didn't say it was hard to fight "selective enforcement." It's very easy to fight TRUE selective enforcement. However, if you are going to attempt to do that, you better have done your homework and have all your details and facts straight.

How does a board prevail? Quite simply, they can prove they don't engage in selective enforcement.

Our records and files are quite tight. We have records showing enforcement against every single notification of violation we receive. If there is a complaint, there is an investigation. If the investigation verifies the complaint, action is taken, to whatever extent required to bring resolution.

Residents often don't have a clue how many letters or notices of violation we send out in a month, much less in a year. So they (or more precisely, their attorneys) pull the "Selective Enforcement" boogey man out of the closet.

I, personally, have no patience for boards or HOAs that truly engage in selective enforcement.

Your documents don't have much patience for them either and should indicate a roadmap of sorts on how to address it. It all depends on how much time, energy and money one wants to set aside to do it and win.

The good news is, if you are successful, then the board (well, the HOA which you pay into) will have to pay your attorney's fees.

If you are successful, however, the long-term prognosis for your HOA is good, because the board will have learned what it MUST do to uphold the integrity of the documents, and the homeowners can enjoy true balance in their CC&Rs.

Bob, I hate to tell you this, but you may have to do some more reading of your CC&Rs and By-laws. I know, they're not the most exciting read you'll ever do!

But the section I quoted earlier in our CC&Rs that allows our Board to make interpretations and determinations (definitions), and that interpretation is binding, only applies to OUR HOA.

You may find after thoroughly reviewing your documents that your board does not have that same authority. Or you may find it does, but either way, at least you will be armed with additional information.

In our subdivision, parking and storage of those items would be interchangeable. But then, our docs also clarify by saying, "parked, stored or kept on any lot unless in a garage or basement." Though the "basement" part cracks people up all the time since none of our homes have walk-outs.

At any rate, you may want to take copies of the CA regs that classify (specify) all trucks as "commercial vehicles," so that when or if they clarify at the meeting that it is the "commercial vehicle" tenet of your CC&Rs that you are violating that you can read that aloud and ask them for assurances that anyone and everyone else with trucks have received the same notice.

Here's the thing, I know it seems repugnant to you to "tattle" on your friends and neighbors who also have a truck and supposedly aren't getting the fine/notice of violation.

However, IF your goal is to PROVE that the board is engaging in selective enforcement, one of the ways to force its hand or dilute its defense to the charge is to make it a point to provide them with the specific lots that also are in violation, even if some of those lots are their own. Then they would have no defense that they were not formerly or "officially" aware of the infractions, even though the probably SHOULD have been aware. They would have to show why they did not move to enforce once they got the list.

I would prepare the list before I went to the meeting and present the board with a copy of it. It could be worth your while if you get the fact that they have been given formal notice on the violations on the record.

Also, keep in mind, our board has not sat down and gone over each CC&R with a fine-tooth comb and "defined" or "interpreted" each one and published those findings. Often we don't have to get into such a discussion until and unless some situation arises that has caused confusion.

At that time, the board will address the issue in a meeting and make a determination and publish their finding. That is the key. It is published so everyone in the community is on the same page. We can't make a determination or interpretation mean something in connection with one person and then change it to mean something else altogether when applying to someone else. However, once a determination/interpretation is made, it is binding.

Good luck to you.

Michele,
You might see if Donna will accept a contract to arrange for a concrete casket. On second thought I am sure most of us have one or two to add to the list so Maybe Donna will give us a group rate.

. . . And be sure to close with:

"In the meantime, we will continue to enforce and owners are expected to comply with all the CC&Rs that exist currently."

Best Regards,

Bob Loblaw

Michelle,

Our association went to court on enforcement of a vehicle restriction covenant. The 2 defendants tried to claim selective enforcement and that the covenant was unreasonable and vague at best.

$65,000 later,I can tell you that the Judge ruled that this and these types of covenants ARE reasonable and enforceable until changed by the association per a vote. So---- KEEP ENFORCING until your membership wants it changed. Do send the letter as suggested If he, the owner, wants to get down to Florida, get a petition for the issue to be brought up before the Board, then let him do the work but keep it evenly enforced for now

I forgot,
The majority of our owners are absentee owners, I suppose those so inclined might want rules that favor the majority. Not supposed to work that way.

Sad but true Donna,
And if we think we got a raw deal now, turn the operation totally over to absentee home owners and then we will probably commit sideways.

EllenS
You are surely mistaken. I moved in with the restrictions and I still agree to abide by them. Now that I am sure that it is my truck some have issue with, I say to bad. Our docs say no parking commercial vehicles and as the CA Vehicle Code, which is law, states all trucks are commercial vehicles. Now if the board feels they need to change the ccr or rules to include some trucks and exclude others then they need to change the docs. But there is no way that I am going to be bullied into moving a truck because someone thinks I should when the ccrs or rules do not give them the power to do such. If all truck parkers were getting letters, fines, ect that might be another story. They are not. I do have that in writing from a board member.

Also here we go with assumptions agais. You think I sit back and do nothing? I do not. I pick up trash, keep things neet take care of my lot and keep it nice. I do not break the rules.
As a matter of fact I am the one that has met with the landscape company several times because the board is to busy. I am the one who takes it upon myself to walk my development with my gallon of GOOF OFF and clean the place and save the HOA money by not having to call and pay a company to clean the graffiti. I pay my dues on time. So don't assume that just because someone is not a board member we sit on our rumps and complain. I do these things because I think it is in the best interest of our community as a whole.
The way I understand it if the board themselves do not follow rules than they set the example for others to follow. I will fight these fines all the way to the 3 million liability policy.Whats good for the goose......

In the past

Donna,

You are right. I guess my rant was because of my frustrations of where I have lived for the past 7 years. There are two sides to every situtation and I appreciate your reminding me of this. I complained about complainers while I am doing the same thing. It takes patience to solve problems and I thank you.

Ellen,
Welcome aboard. We all have so much to contribute and your input is welcomed by all. Frustration? There probably is not one of us here who at times has not wanted to give someone a Wack!. But the nature of humans is to be different and if you want a good example of that, it always can be found in a HOA. So thank you for joining in and wait until you get into some REALLY goofy posts. When I think that I have heard them all, along comes one even better.

Ellen,
I too am South Fl, in Martin County where HOAs are very prevelent and most actually run quite well. But leaving our area and going North, the story is different because HOAs are fairly newer and scattered apart for the most part.

Okay, now to your problem. I think that you will need to copy the parts of your documents where the Board needs to be made aware of lack of information. Copy the Statutes also where the Board is required to follow them. You now have the huge task of trying to get rid of the "good ole boy" mentality and get back to how the HOA system works. That means reststance from the old timers who will think that you are butting in but you have got to do the right thing. Good luck.

Hi Donna
Thanks for sharing about the HOA paid $65,000 in attorney fees. Makes me realize as a board member that we need to work with our homeowners, keep the lines of communication open and explain why we do what we do keeping board politics out of it. I am sure our board would rather spend money doing something good for the community than fighting homeowners. All this fighting stuff gets around and then people don't want to buy in your neighborhood and prices fall especially in todays real estate market. Thanks again Donna for the information.

Thanks. Two years ago at an annual meeeting I did tell owners of their rights. Sort of sad. With 101 homeowners we have never had a quorum. Part of our problem is total apathy, partly I believe, because when they did contact the magement company and it went nowhere. With a more professional management company and a new board I have high hopes.

I'd advise the investor to go for it. Let the investor try to get the vote for a revision. Not as simple as it seems. Meanwhile inform all owners that an out of state investor who has no concern about the community but only his investment will be taking actions to degrade the value of their homes.

DouglasN4, this thread is over 8 years old! Please start a new one.