ThomasC11 (California)
Posts: 210
Posts: 210
Posted:
Does the Board have the authority to pick and choose which of the Rules they want enforced or not enforced? This is what I was told by President. Sounds like rubbish.
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Rules and Regs
Started by ThomasC11 • 11 replies • 1438 views
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AnnaD2 (Florida)
Posts: 960
Posts: 960
Posted:
It IS rubbish, and it's called selective enforcement. The board can be sued for doing that, too.
TimB4 (Tennessee)
Posts: 21,059
Posts: 21,059
Posted:
Thomas,
The best answer I can provide is no but it may appear that they are.
What the Board must do is apply equal enforcement of the regulations to everyone. However, they do not have to go and look for infractions (they can wait until someone reports a possible violation to the them). The Board can also insist that all suspected violations must be reported in writing (which may diminish the number of reports that they do get).
Additionally, the Board can decide to concentrate on one rule and still enforce the other rules only if they are reported.
As it has been pointed out, whatever they do - they must do equally to everyone or it is considered selective enforcement.
Hope this helps,
Tim
The best answer I can provide is no but it may appear that they are.
What the Board must do is apply equal enforcement of the regulations to everyone. However, they do not have to go and look for infractions (they can wait until someone reports a possible violation to the them). The Board can also insist that all suspected violations must be reported in writing (which may diminish the number of reports that they do get).
Additionally, the Board can decide to concentrate on one rule and still enforce the other rules only if they are reported.
As it has been pointed out, whatever they do - they must do equally to everyone or it is considered selective enforcement.
Hope this helps,
Tim
BrianB (California)
Posts: 2,820
Posts: 2,820
Posted:
this, while normally the tactic of a weak board, can have some logical and necessary reasons that would lead even a strong board to do so. It very much depends on WHAT rules they are and aren't enforcing, and WHY they are doing what they are doing.
For example, fining this person for parking their boat in the driveway, but not their neighbor for a similar boat..
1) could be selective enforcement
2) could be that one neighbor has a legally granted variance
3) could be that one neighbor's boat is 2 inches shorter than the other, and thus is not covered by the regs.
Fining a person for parking their boat, but not fining someone for excessive weeds...
1) COuld be no one complained about the weeds, and everyone likes them
2) Could be the weed rule has been determined unenforceable for legal reasons
3) could be a higher order law prevents it (ie, waterscaping/drought rules or native plant laws prevent enforcement)
So, there could be valid reasons for selective enforcement, could be total rubbish... we would need to know more about exactly what is being done to be sure of our convictions... but it tends to be the rubbish answer, usually.
For example, fining this person for parking their boat in the driveway, but not their neighbor for a similar boat..
1) could be selective enforcement
2) could be that one neighbor has a legally granted variance
3) could be that one neighbor's boat is 2 inches shorter than the other, and thus is not covered by the regs.
Fining a person for parking their boat, but not fining someone for excessive weeds...
1) COuld be no one complained about the weeds, and everyone likes them
2) Could be the weed rule has been determined unenforceable for legal reasons
3) could be a higher order law prevents it (ie, waterscaping/drought rules or native plant laws prevent enforcement)
So, there could be valid reasons for selective enforcement, could be total rubbish... we would need to know more about exactly what is being done to be sure of our convictions... but it tends to be the rubbish answer, usually.
ThomasC11 (California)
Posts: 210
Posts: 210
Posted:
As for filing a complaint, our new mangager says that the person having the complaint filed against them has the right to know who filed the complaint. More rubbish?
How and why would anyone want to blow the whistle for fear of retaliation?
I thought this could be anonymous.
How and why would anyone want to blow the whistle for fear of retaliation?
I thought this could be anonymous.
BrianB (California)
Posts: 2,820
Posts: 2,820
Posted:
It can be anonymous, it can be semi-anonymous, and it can be completely open.. that is a board/community decision. I have been on all sides of the arguement, and see value in each opinion.
as to being rubbish... I believe a few of our founding fathers might disagree with the sentiment that knowing your accuser was a rubbish idea.
Personally, I always got around the problem if a person wished to be anonymous by acting myself upon their information, and observing the offending behavior on my own, so that I, as the board rep, was the "accuser". WHen they demanded to know who turned them in, I could honestly state "I myself observed XXX and YYY on October 23rd, and again on Oct 25th, and again on... etc..."
as to being rubbish... I believe a few of our founding fathers might disagree with the sentiment that knowing your accuser was a rubbish idea.
Personally, I always got around the problem if a person wished to be anonymous by acting myself upon their information, and observing the offending behavior on my own, so that I, as the board rep, was the "accuser". WHen they demanded to know who turned them in, I could honestly state "I myself observed XXX and YYY on October 23rd, and again on Oct 25th, and again on... etc..."
ThomasC11 (California)
Posts: 210
Posts: 210
Posted:
that is a good approach, the manager can take the heat. If the accusation is false and harrassing, then the complaining party's name should be revealed.
ThomasC11 (California)
Posts: 210
Posts: 210
Posted:
The rule not being enforced is one that says all owners must park at least 1 car in their garage/carport before parking a vehicle in the lot.
We do not have driveways or permits.
We do not have driveways or permits.
MicheleD (Kentucky)
Posts: 4,491
Posts: 4,491
Posted:
Quote:
Posted By ThomasC11 on 12/28/2009 10:18 AM
that is a good approach, the manager can take the heat. If the accusation is false and harrassing, then the complaining party's name should be revealed.
that is a good approach, the manager can take the heat. If the accusation is false and harrassing, then the complaining party's name should be revealed.
Nope. Sorry. Completely disagree. To what point?
If the accusation if false (and who determines "harassing"?), then the complaint is simply ignored.
MaryA1 (Arizona)
Posts: 7,043
Posts: 7,043
Posted:
Quote:
Posted By ThomasC11 on 12/28/2009 9:44 AM
As for filing a complaint, our new mangager says that the person having the complaint filed against them has the right to know who filed the complaint. More rubbish?
How and why would anyone want to blow the whistle for fear of retaliation?
I thought this could be anonymous.
As for filing a complaint, our new mangager says that the person having the complaint filed against them has the right to know who filed the complaint. More rubbish?
How and why would anyone want to blow the whistle for fear of retaliation?
I thought this could be anonymous.
Thomas,
Have you checked out the Davis-Stirling Act; what your manager say may not be rubbish? Several years ago the AZ HOA statutes were amended to require the name to be provided to the errant member if the member responds in writing to the BOD upon receipt of the violation notice. The statute is a bit ambiguous in that it does not state the member must request the info but only if they respond to the violation. I know some BOD's are just stating the violation was noticed by the manager because if a member complains about a preceived violation the manager will check it out b/4 sending a violation notice.
HB (Oregon)
Posts: 143
Posts: 143
Posted:
No. If the Board finds something in the Rules & Regs that they believe to be unenforceable or nearly impossible to enforce, then it needs to be brought to a meeting and voted on the change it.
The Board does NOT have to "patrol" the neighborhood looking for violations, however if they are aware of a violation (ie. receive a complaint, actually see the violation, etc.) then they must act on it.
For example, if they are aware of an RV parked at a home and your Rules & Regs prohibit RV parking then they must send a violation notice, regardless of whether everyone is ok with it or not. If I moved into the neighborhood expecting those types of things to be upheld (because that is what I signed when I bought my house), then I could sue to get the HOA to comply.
YOU are the HOA, so if the Board is not upholding the Rules & Regs, do something about it. Otherwise you are part of the problem.
The Board does NOT have to "patrol" the neighborhood looking for violations, however if they are aware of a violation (ie. receive a complaint, actually see the violation, etc.) then they must act on it.
For example, if they are aware of an RV parked at a home and your Rules & Regs prohibit RV parking then they must send a violation notice, regardless of whether everyone is ok with it or not. If I moved into the neighborhood expecting those types of things to be upheld (because that is what I signed when I bought my house), then I could sue to get the HOA to comply.
YOU are the HOA, so if the Board is not upholding the Rules & Regs, do something about it. Otherwise you are part of the problem.
MaryA1 (Arizona)
Posts: 7,043
Posts: 7,043
Posted:
HB,
A number of years ago there was a court case in AZ where a member sued the BOD for not enforcing a CCR restriction. (Re: Gfeller v. The Scottsdale Vista North Townhouses Assn) The member won the case; however, it was only won because the CCRs state the BOD has a "duty" to enforce. It's uncertain as to whether or not a court would rule against a BOD for not enforcing the CCRS if the CCRs do not place a "duty" on the board to do so. Also, many CCRs even state the BOD does not have the obligation to enforce and that any member of the assn may do so if they have petitioned the board to enforce and they fail to do so w/i a certain period of time.
A number of years ago there was a court case in AZ where a member sued the BOD for not enforcing a CCR restriction. (Re: Gfeller v. The Scottsdale Vista North Townhouses Assn) The member won the case; however, it was only won because the CCRs state the BOD has a "duty" to enforce. It's uncertain as to whether or not a court would rule against a BOD for not enforcing the CCRS if the CCRs do not place a "duty" on the board to do so. Also, many CCRs even state the BOD does not have the obligation to enforce and that any member of the assn may do so if they have petitioned the board to enforce and they fail to do so w/i a certain period of time.
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