Last week, maxHOA published a blog entitled “Are Rules Really Meant to Be Broken?” This article examined some of the common concerns with rule enforcement—particularly selective enforcement. HOA boards that cite or fine one homeowner for a rule violation but don’t discipline another homeowner for the same violation are selectively enforcing the rules. This scenario can create a disgruntled community.
Another reason homeowners can become frustrated with HOA management is that rules are enforced in an impractical or vindictive way. The following three examples demonstrate HOAs pursuing rule violations; some are won by the association while others are won by the homeowner.
No Purple Playsets
A purple swing set in Missouri was a contentious issue that made its way to a local court. After painting the swing set purple at the request of their two young daughters, the homeowners heard no complaints from the HOA. The family enjoyed the colorful playset for two years before the board decided that the swing set would need to be repainted. The HOA claimed that the swing set was required to be painted a predetermined color set by the board. The HOA even threatened to fine or engage in legal action if a remedy was not sought.
The family fought back. After a back and forth with the association, they filed their own lawsuit against the HOA. The judge’s ruling after an initial hearing indicated that the swing set does not need to be repainted or removed. The homeowners argued that the rules were being selectively applied; they noted that there were purple doors and purple trees. The homeowners’ attorney stated, "I think it said a lot that the judge took a week to review the case, review the facts, review everything,"
Garage Doors Must Remain Open
Homeowners in Auburn, California faced a unique challenge when their HOA required garage doors to remain open from 8am to 4pm on weekdays. The residents of this community faced a $200 fine for failing to comply, but they responded so negatively to the initiative that it garnered national attention. The HOA justified this new rule as a reaction to people living in garages. Homeowners responded with mixed results, particularly those that thought the policy was a gross overreaction to the low incident of garage squatters.
Some residents called it “ridiculous” and cited safety concerns. The open door policy, so-to-speak, left valuables unattended and unlocked while in plain view. Some homeowners made significant changes to their garage space in order to comply with the rule and keep their possessions safe. After the backlash from media attention, the HOA decided to pause the garage door policy until further notice. The HOA indicated that new garage doors on carports are not permitted and those that currently exist were grandfathered into the new policy. In the end, however, the board decided that it would like to find a more reasonable solution.
One resident in an HOA in Kansas City fought his HOA over unused green space. After growing weary of an empty spot near his home, Jim Lane decided to plant pansies in a three by four-foot common space. He stated that this space was not improved for three years. He acknowledged that the space looked great and his neighbors were pleased with the change.
The HOA, unfortunately, was not pleased. They slapped Mr. Lane with a “cease and desist” letter for violating a rule against planting anything in common spaces without permission. Mr. Lane suggested that the lack of care for a significant amount of time made the permission requirement moot. The HOA ended up fining Mr. Lane $527 for each pansy, totaling $6,000 in fines. The HOA then informed Mr. Lane that he would be required to pay another $1500 in legal fees for the filing of a lien against his home.
In the end, Mr. Lane gave in and removed the pansies. He paid the near $9,000 to avoid the lien on his home. He said, “I had to drop it. Otherwise, it was going to financially ruin me.” Mr. Lane considers himself a consultant and management services to HOAs, indicating that he is familiar with the process needed to make changes to a public space. In fact, Mr. Lane had once served as an HOA board member. Today, Mr. Lane continues to do activist work for HOA law and regulation reform. “The legislators have to wake up and realize that owners are truly not being protected,” he said. “One of them needs to have their home taken away by an HOA so they can understand the problem.”
While these three examples may seem extreme, they are just some of many issues that homeowners face within their HOA. As indicated in the previous maxHOA post about rules, homeowners are best served by paying close attention to the specifics listed in the CC&Rs and bylaws. Homeowners should also reach out to the board and ask for approval in writing. This practice can be extremely helpful and avoid future litigation.