Katharine Hepburn famously said, “If you obey all the rules, you miss all the fun.” While that may have been true for one of Hollywood’s best, it may not be a good suggestion for homeowners in planned communities. It may be more “fun” to take a week off from mowing the grass, but the board (and your neighbors) will likely have something to say about it. When you agree to live in an HOA, you also agree to follow its rules.
Each HOA enforces the rules set out by the conditions, covenants and restrictions (CC&Rs) as well as the association’s bylaws. In addition, each state has its own laws that govern the operation of HOAs, making the process of establishing and enforcing rules differ from one community to another. CC&Rs often outline the care that must be maintained on the exterior of your home to ensure everyone complies with basic aesthetic standards. The look of your home impacts the neighborhood aesthetic, which affects the value of homes in the entire community.
For example, one rule may require you to keep your grass cut at a certain height to avoid an overgrown or shaggy lawn. But the CC&Rs dictate a lot more than grass height. Other common restrictions include limiting home colors, regulating the size and shape of outdoor living spaces, and controlling the style of landscaping. The result can be a list of very specific rules.
Some HOA residents are worried about the board not enforcing the rules. Some HOAs rely on neighbor reports of rule violations while others establish an enforcement officer. For example, if you are required to keep your grass cut below four inches and you let it grow to 5 inches, you may receive a citation or fine. The impetus for the penalty could be a neighbor who made a complaint to the board. It could have also come from a board member who canvasses the neighborhood, looking for violations including overgrown grass. In some instances, inspection officers will even pull out a ruler and measure the length of the grass. (A recent MaxHOA post addressed this concern, reminding board members not to be a Cynthia.)
Perhaps the most controversial issue for homeowners is when they feel that the board is enforcing the rules selectively. Selective enforcement refers to the notion that board members cite or fine some homeowners that violate the rules but not others. How would you feel if you got a citation or fine for an overgrown front yard when five other homeowners on your street have the same shaggy grass? Most homeowners would take personal offense to the citation. Rather than recognizing and addressing the issue in the citation, the homeowner responds to the perceived inequality, which makes selective enforcement a very contentious issue in HOAs.
Selective enforcement typically manifests in two forms. First, in the case of reported violations, some homeowners are more active reporters than others. This means that some rule-breakers will be more often reported than others. Those homeowners will be unfairly—or selectively targeted for a penalty. The second scenario is a bit more nefarious. Some board members choose to play favorites in the community, letting violations go for favorited homeowners but not for others. Either scenario, however, can result in legal action.
Some states specifically outlaw selective enforcement. Other states fail to name selective enforcement specifically but call for an obligation of “good-faith” in the execution of enforcement. Best practices suggest that all HOA boards avoid selective enforcement and seek to create an environment of fairness and mutual respect. Homeowners too can prevent selective enforcement by paying close attention to the specifics listed in the CC&Rs and bylaws. If a homeowner intends to make a major change, such as adding a pool or installing fencing, they should reach out to the board and ask for approval in writing. This small bit of evidence can come in handy in the event of a conflict.
What should you do if you feel like your HOA has unfairly enforced the rules?
If you feel like you have been unfairly targeted for discipline relating to a rule violation, it is always a good idea to speak directly with the board. Write an email, outlining your concern with the violation. Be sure to remain courteous and professional. If you have evidence of pre-approval, attach it to your email. Speak to a legal professional about the best way to draft this document.
If you refuse to pay the fine or make the physical alteration, the HOA can sue you for an injunction or monetary damages (typically the amount of the fine plus legal fees). To fight the lawsuit, you must be able to prove that the HOA was inconsistent in its enforcement procedures, intentionally giving breaks to some owners and giving citations and fines to similarly-situated neighbors. This standard is a difficult one to meet, as this Arizona lawsuit demonstrates. As always, consult your legal professional to get the best advice in pursuing a legal claim.
In extreme circumstances, you may want to initiate legal action. The cost of legal fees, however, may outweigh the cost of the fine or the fix. In these cases, homeowners often just bite the bullet and comply with the HOA. Other homeowners find the fight valuable enough to file a lawsuit. HOA boards should immediately consult their legal team in the event of a lawsuit.
Katharine Hepburn may have gotten away with breaking the rules. As a homeowner in an HOA, however, you might want to sacrifice a little fun and avoid the headache of a citation. After all, not all rules were meant to be broken.
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