Enforcement of the rules and regulations of an HOA can be an intimidating challenge at the best of times. Many of the rules may seem impossible to enforce, and homeowners may often challenge an enforcement that they feel is unwarranted or unfairly implemented. In some cases, a resident may plead “selective enforcement” in a court. If you are new to a homeowners association board, you may be unfamiliar with the term. The purpose of this article is to clarify the term and to help you to form the best defense should such a claim be brought against your board.
What is Selective Enforcement?
One of the purposes of the board is to enforce the bylaws and covenants that each resident signed when they chose to be a part of the community. When the time comes that a homeowner must be penalized for a breach in contract, whether big or small, the homeowner has the legal right to file a claim of selective enforcement. The resident can file a claim if they feel that either 1) the regulation has been enforced in their case but not in others, or 2) the regulation has been enforced unfairly or inconsistently throughout the community.
What Can a Board do to Protect Against a Selective Enforcement Claim?
There are two main things that an HOA can do to protect against a selective enforcement claim being filed by an angry homeowner. The first is to establish a system of enforcement that is systematic, nondiscriminatory, and above reproach. Each and every instance of implementation of the regulation should also be documented thoroughly in case the resident needs to be persuaded of the irreproachable nature of the system. The second protection is to establish beforehand a system by which the resident can issue complaints without resorting to a public lawsuit. Most issues can be handled internally if the proper time and attention can be given to the grievances of the homeowner.
In the midst of constant elections, re elections, and changes in board membership, it is important to establish consistency and to be as communicative as possible with homeowners when changes of enforcement are expected.
How Can a Board Build a Solid Defense?
At times it may be impossible to avoid a selective enforcement battle. In the regrettable event that a resident files a claim, it is important to be prepared for such an eventuality. A good defense on the side of the association is built on proof of adequate reasoning behind the enforcement as well as meticulous record keeping of all past enforcement. The association is usually asked to provide documented proof that it was necessary to enforce the rule for the well-being of the community.
Selective enforcement is just one of the many challenges that an HOA board will face. Consistency, communication, and meticulous record-keeping are just some of the many ways you should use to strive to protect the community from battles in court. Although it can be overwhelming, your efforts to keep the peace will be well worth the trouble.