The homeowners' association's (HOA) attorney represents the HOA as an entity. The HOA is separate...
HOAs are required to uniformly enforce all covenants, conditions, and restrictions within a community. Failing to enforce these uniformly within the community can expose the HOA to selective enforcement lawsuits. Of course, an HOA can always counter such suits by bringing a lawsuit against the homeowner for violating the CC&Rs.
The Importance of Equal Enforcement of CC&Rs
HOAs are charged with protecting the rights and property values of homeowners (the HOA’s members) in the common interest community. HOAs agree to enforce these rules uniformly and without favor to all who purchase property within the community. At the same time, homeowners agree to abide by these rules and expect that these rules will be obeyed by their neighbors.
When HOAs selectively enforce these rules, it creates an unfair burden on homeowners who adhere to the CC&Rs. It erodes trust in the HOA and creates a sense of “If neighbor X doesn’t have to abide by the rules, then why should I?”
Over time, this can significantly erode the effectiveness of the HOA, reduce revenue, and diminish home values within the community. It is a vicious, downward cycle that is easily prevented through equal enforcement.
Legal Liability for Selective Enforcement
There are many reasons that an HOA should not selectively or prejudicially enforce CC&Rs. In the eyes of the law, all homeowners within an HOA have the same rights and responsibilities. Further, the HOA has a duty to all homeowners to treat each member fairly, honestly, and without favoritism.
Homeowners who feel that they are victims of selective enforcement will often draft a letter to the HOA identifying the alleged violation and countering with evidence that either A) they are not a violation, B) the board is selectively enforcing CC&R’s by allowing other homeowners to commit the same violation, and/or C) requesting a hearing to discuss the alleged violation.
If this fails, plaintiffs can attempt to establish that the HOA has engaged in a pattern of selective enforcement. This often extends beyond the current board and involves investigating the actions of previous boards and their handling of CC&R violations. This can create a cascade of legal bills that are easily avoided through uniform enforcement of the CC&Rs.
However, HOAs are not left defenseless. Should a homeowner bring a lawsuit against the HOA for selective enforcement of a clear violation, such as making structural changes without approval, failure to paint a home, failure to pay for agreed-upon services, etc., then the HOA may be able to file a countersuit to compel the homeowner to comply with the CC&Rs and to compensate the HOA for their legal expenses.