Living in an HOA has many benefits, but it also means following a set of community rules designed to preserve home values. Most HOA homeowners can shrug off the occasional late-trashcan or wrong-paint-color fine. After all, the funds will go to the new community pool and everyone has to pay them. Except when they don't.
The whole system comes off the tracks when rules are enforced unevenly. If you repainted your azure deck last summer but your neighbor's hot pink new gazebo goes uncorrected for months, something can seem fishy. If only elderly residents or renter homes are dinged with late-trashcan fines, it can start to look like a pattern of injustice. Selective enforcement is an issue that can occur in HOAs for a number of reasons. Fortunately, you can always take steps to spotlight and correct the situation if it occurs in your neighborhood.
What is Selective Enforcement in an HOA?
Every HOA is governed by a set of rules and founding documents. These rules are followed by every homeowner in the community - ideally. Fees and penalties are designed to enforce community rules and ensure everyone sticks to the agreed neighborhood-improving plan. Any time the rules are being enforced by choice of the board members, selective enforcement is occurring.
Selective enforcement can be well-meaning, like not fining elderly residents for lawn maintenance violations. They can be prejudicial, like targeting a certain type of resident for penalties. The selectivity can be corrupt like taking bribes or ignoring the transgressions of friends. It can also occur due to uneven reporting - like only responding to called-in violations without regular inspections.
Most often, selective enforcement is a matter of neglect - as boards become bored or complacent and stop paying attention to exactly how they are enforcing the rules. This allows mistakes or forms of selfishness to slip through and skew the system.
Whatever the reason, any uneven selection should be addressed openly and directly when it occurs in your HOA.
Steps to Take If Your HOA Rules are Being Selectively Enforced
Make a Record of the Selective Enforcement
If your HOA neighborhood is subject to selective enforcement, start by recording your evidence. Find the rules that are being unevenly enforced and create a referential copy of the CC&Rs for your file with this rule highlighted.
Take a photo of the hot-pink gazebo and create a dated record of its existence. Create a visual record of any proof that can or should be photographed. You can also collect copies of any fee-paid transactions from fellow member-homeowners.
Request your HOA records on information like recent fines or enforcement decisions. You may find information in meeting minutes, as well. Usually, this information is available to all member-homeowners who ask.
Work Together with Other Homeowners
If there is selective enforcement, you may not be the only one subject to it who objects. Find neighbors who have been similarly treated and work with them. Include their evidence in your file and work together to address the right course of action to correct this uneven rule enforcement. You are a stronger voice and a more creative force as a team, and your documentation will be more complete.
Bring It to Board Attention
The first way to address the problem is to bring it to the board. Attend a regular meeting or request a special meeting to be heard on the issue of selective enforcement. Make your case before the entire board and present your evidence.
Request Fair Enforcement or Rule Removal
When you bring the issue to light, know what you want to request. If the rule is outdated and being mis-used, then request that it be struck or modified in the governing documents. Or you will request for the rule to be fairly enforced across the board. This may involve either more regular inspections or more thorough investigation in response to neighbor reports.
If you have an HOA management company, they may be the most able to address the issue or reveal the reason for the selective enforcement. If you don't have a management company, bringing in professionals can be an effective way to implement regular inspections and fair enforcement of community rules.
Address Problem Council Members, If Necessary
If the problem is one corrupt or incompetent council member, then you may need to address their removal and/or reprimand. Your complaint could reveal a pattern of neglect or an entire scheme of corruption. While drama is the less likely option, be prepared to replace problematic council members who are no longer useful to the community in their council roles.
Consult with a Lawyer
Finally, if all internal remedies have failed, consult with a lawyer about legal remedies. HOAs are legally required in most states to fairly enforce their documents, and they are contractually bound by any fairness terms in the governing documents. If your HOA will not or cannot fix the problem internally, a lawyer can help you take the legal steps to correct the problem with external legal force.
Working with an HOA Management Company for Fair Rule Enforcement
One of the things an HOA management company is best at is fair implementation. According to the written rules of your HOA community, a management company like RealManage is immune to internal politics. A management company can provide the man-power to perform regular patrols and gently handle any violations with an even hand across the community. However, ultimately we work at the discretion of the board and cannot overrule or enforce anything without the board's involvement. This makes an HOA management company a great tool for community boards but not an outside source of authority.
Mary Arnold, CMCA®, AMS®
