Board members must take careful steps to avoid claims of HOA selective enforcement. When owners accuse the board of enforcing the rules unfairly, lawsuits and other consequences are bound to follow. Consistent enforcement not only protects the association but also encourages compliance and prevents conflict within the community.
What is HOA Selective Enforcement?
Selective enforcement occurs when an association enforces a rule unfairly, arbitrarily, or inconsistently. It usually happens when the board enforces rules against some owners but not others in similar circumstances. It is one of the most common causes of disputes between homeowners and associations.
Of course, this doesn’t mean that every difference in treatment constitutes selective enforcement. The HOA may simply not know about every violation, leading to enforcement for some but not others. Violations can also differ in size, location, visibility, and severity.
Some owners might claim selective enforcement when their architectural request gets denied. Yet, upon closer inspection, they were denied because the requests didn’t align with architectural guidelines. It wasn’t a matter of selective enforcement; rather, it was a simple case of noncompliance.
Is Selective Enforcement Illegal?
Some associations may not think it’s a big deal, but selective enforcement can have real-world consequences. In fact, in most cases, HOA selective enforcement is illegal.
Associations must apply the rules fairly and consistently to all owners. If a board picks and chooses which residents to penalize, their actions can be deemed capricious or arbitrary. This is a violation of the law.
Furthermore, selective enforcement can be considered discriminatory. If a board enforces the rules selectively against residents based on protected characteristics, it is usually in direct violation of the Fair Housing Act and state-level fair housing laws.
Other than that, board members have a legal obligation to act in the best interest of the community. Singling out specific residents is a breach of this fiduciary duty.
Common Examples of HOA Selective Enforcement
Selective enforcement isn’t always easy to identify. Board members must learn the signs and indicators of inconsistent enforcement. Here are the most typical instances of selective enforcement of HOA rules.
1. Not Applying Rules to Everyone
This happens when the association enforces a rule against one owner but ignores the same violation by other owners. Boards must always apply the rules equally to all owners.
2. Playing Favorites
Favoritism is another example of HOA selective enforcement. Board members should never give special treatment to friends, long-time residents, influential owners, or any other member of the association.
3. Enforcing Rules Only After Complaints
If the board acts only when someone complains about a violation, even while ignoring similar violations, it is a blatant instance of selective enforcement. Proactive inspections can help avoid this.
4. Inconsistent Penalties
Similar violations must carry similar penalties. Imposing different fines or consequences for the same offense can constitute unfair treatment.
5. Changing Standards Without Notice
This happens when the board applies a stricter interpretation of a rule to some owners but not others. If the board wishes to make a rule more stringent, it must formally update its policies.
6. Targeting Specific Owners
Some boards heavily scrutinize or retaliate against an owner who frequently disagrees with or makes complaints against the board. This is a clear example of HOA selective enforcement.
7. Failing to Follow Established Procedures
The board must follow the enforcement process at all times. Never skip steps or jump to penalties depending on the owner.
8. Enforcing Unwritten Rules
This happens when the association imposes standards on some owners that are not found in the governing documents. If the board wishes to enact a new rule, it must follow the amendment process.
9. Overlooking Violations by Board Members
Directors are not exempt from the rules. Selective enforcement occurs when board members aren’t penalized the same way owners are for breaking the rules.
Can I Sue My HOA for Selective Enforcement?
Homeowners are free to sue their association or board for selective enforcement. That said, winning is not a guarantee. Owners must also know how to prove selective enforcement, as a simple claim won’t be enough.
Proving selective enforcement is often difficult. Owners must generally have evidence that the HOA knew about similar violations and chose not to act. Documentation and key witnesses are imperative.
Additionally, boards usually have certain protections in place. The Business Judgment Rule protects the board from liability for the decisions it makes while in service. Directors and Officers (D&O) insurance also helps cover legal costs. Other protections include state nonprofit corporation laws, volunteer director liability protections, and HOA indemnification provisions.
That said, the board may be found personally liable in certain circumstances. This includes if the board acted in bad faith, engaged in willful misconduct, exceeded its authority, discriminated against homeowners, or breached its fiduciary duties. Again, evidence is paramount to prove one or more of these happened.
It is relatively uncommon for a court to hold the board personally liable. More often than not, a court will rule the enforcement action invalid, reverse the fines, and/or order the HOA to stop enforcing the rule against the owner. The association may also be compelled to cover the owner’s attorney’s fees.
How to Avoid an HOA Selective Enforcement Lawsuit
Boards can reduce the risk of selective-enforcement claims by adopting the strategies outlined below.
1. Conduct Regular Community-Wide Inspections
Instead of waiting for complaints to come in, boards should schedule routine inspections of the neighborhood. This will help identify violations and prevent claims of HOA inconsistent enforcement.
The board can perform this task itself or assign a compliance committee to do so. Some associations hire professional HOA managers to handle all administrative work, including violation inspections and enforcement.
2. Formalize Enforcement Policies
Boards should adopt a formal enforcement policy. This will standardize the steps owners can take and the steps boards must follow. Having a clear rulebook allows for consistency and fairness.
3. Apply the Same Standards to All Owners
It may be easy to say, but HOA selective enforcement can be avoided by simply applying the same standards to everyone. No one gets special treatment, including the board members themselves. When enforcing the rules, boards should also never let personal judgment, bias, or favoritism cloud their minds.
4. Maintain Consistent Records
Every complaint, inspection, notice, alleged or confirmed violation, hearing, and decision should be documented. This will create a paper trail and serve as a reference for both owners and board members. If the case goes to court, these records can function as evidence.
5. Follow Due Process Consistently
Associations should never skip steps when implementing due process. For instance, Virginia law requires HOAs to give owners an opportunity to correct their violations before imposing any penalties. Owners must also receive notice and get a chance to appear before the board at a disciplinary hearing to defend their side.
If the board fails to provide notice or denies an owner the opportunity to be heard, the enforcement action may be invalid. Worse yet, the owner can take legal action against the association.
Protecting the Association
HOA selective enforcement can destroy the board’s credibility, damage trust, and increase legal exposure. It’s an even bigger problem among associations with particularly litigious residents. Enforcement encourages compliance, but boards should ensure it is carried out fairly and consistently at all times.
National Realty Partners is a leading provider of HOA management services in Virginia. We can help your board manage and enforce the rules. Call us today at 703-435-3800 or request a proposal online!
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