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Thread: HOA's: Consistent vs. Selective Enforcement of CC&Rs?

  1. #1
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    Default HOA's: Consistent vs. Selective Enforcement of CC&Rs?

    If there is anyone who can help me understand where I am with the
    following situation I would very much appreciate it.

    My Homeowners Association (HOA) has rules against some things that I
    think are probably rather typical, no basketball hoops left out,
    gardening equipment needs to be put away, motorsports equipment needs
    to be stored in the garage AND the point of this post, no clotheslines.

    My question is, if I put a clothesline out can the HOA come down on me
    if they do not enforce _other_ offenses? As I drive around the
    subdivision, I can spot offense after offense of HOA rules, I have a
    hard time taking the rules seriously seeing this.

    As I understand it (which admittedly isn't very far at all) HOAs are
    strange little pockets of self-governance that may not be subject to
    conventional legal protocols. I am hoping someone on this group could
    provide some enlightenment.

    Thanks in advance for any help.


  2. #2
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    Default HOA's: Consistent vs. Selective Enforcement of CC&Rs?


    mahgni@earthlink.net wrote:
    If there is anyone who can help me understand where I am with the following situation I would very much appreciate it. My Homeowners Association (HOA) has rules against some things that I think are probably rather typical, no basketball hoops left out, gardening equipment needs to be put away, motorsports equipment needs to be stored in the garage AND the point of this post, no clotheslines. My question is, if I put a clothesline out can the HOA come down on me if they do not enforce _other_ offenses? As I drive around the subdivision, I can spot offense after offense of HOA rules, I have a hard time taking the rules seriously seeing this. As I understand it (which admittedly isn't very far at all) HOAs are strange little pockets of self-governance that may not be subject to conventional legal protocols. I am hoping someone on this group could provide some enlightenment. Thanks in advance for any help.
    As an ex-board member, this is a common "neighborhood" defense:
    "I'm not going to mow my yard because neighbor Y has had his trash can
    out for 3 days".

    Sound childish to you?

    The HOA is essentially a private contract that establishes
    pre-agreement between all the neighbors in regard to the restrictions.
    Of course, many don't bother to read the rules.
    The "HOA" is your neighborhood.. You may not be on the board, but
    you're party to the level of enforcement in the neighborhood. If you
    don't like something, provide your input - or better yet, do something
    about it: Get involved in the community.

    To answer your question: restriction violation A does not pardon
    restriction violation B.
    "Selective enforcement" is illegal - but selective enforcement happens
    over the same issue, not differing issues.

    Think about it practically: Assuming the HOA was doing everything it
    could about every single violation, does your HOA have the manpower (or
    funds) to drive the neighborhood every day. Would mailed notices in
    regard to every issue make sure that those issues are taken care of?
    Could some residents be ignoring initial violation notices?
    Trust me, we're talking about a potential of thousands of violations
    here over a period of a year. Each violation has to be followed up on
    in a procedure that is fair and would allow for legal action... It can
    take a while. Bad boards make it worse if they are inconsistent or
    selective about what they enforce.

    Be aware also - somes may not be enforced for a reason. Our HOA had
    regulations that prohibited antennas and satellite dishes, both are
    allowed by the FCC. The board would allow these items, but because our
    developer required 75% community vote and CORRESPONDING leinholder
    permission to change the "rules" (CC&R) - such a change has never been
    made.


  3. #3
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    Default HOA's: Consistent vs. Selective Enforcement of CC&Rs?

    > My Homeowners Association (HOA) has rules against some things that I
    think are probably rather typical, no basketball hoops left out, gardening equipment needs to be put away, motorsports equipment needs to be stored in the garage AND the point of this post, no clotheslines.
    My question is, if I put a clothesline out can the HOA come down on me if they do not enforce _other_ offenses? As I drive around the subdivision, I can spot offense after offense of HOA rules, I have a hard time taking the rules seriously seeing this.
    IANOL, but I was the Covenants Administrator for a HOA. We tried to settle
    most problems on an informal basis, but occasionally had to resort to legal
    proceedings. We were careful to be consistent in enforcement WITHIN the
    violation type. One of my duties was to do a drive-around survey before any
    violation was referred to the board of directors for legal action. If many
    clotheslines existed then the board would not attempt legal action against a
    specific resident for an unapproved clothesline. However just because there
    were a lot of basketball hoops and junk cars and buildings needing paint,
    didn't mean they wouldn't take action against an improper fence.
    --
    Don in Upstate NY


  4. #4
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    Default HOA's: Consistent vs. Selective Enforcement of CC&Rs?

    mahgni@earthlink.net wrote:
    My Homeowners Association (HOA) has rules against some things that I think are probably rather typical, no basketball hoops left out, gardening equipment needs to be put away, motorsports equipment needs to be stored in the garage AND the point of this post, no clotheslines.
    Sounds like the development where I live too.
    My question is, if I put a clothesline out can the HOA come down on me if they do not enforce _other_ offenses?
    Of course they can. Ask it in a different context: can the cops give
    you a ticket for running a red light even if they didn't give you a
    ticket for also speeding as you did it? Or can they give you a ticket
    for speeding when the guy who just passed you got away? Selective
    enforcement is not only legal, it's virtually unavoidable. In just
    about any context you can think of, the powers that be can't possibly
    catch, cite, and prosecute every single offense being committed all the
    time, every time. Or maybe, with a little help from the NSA's phone
    taps, they can? <g> But we wouldn't want to live under such a
    "piolice state", would we?
    As I drive around the subdivision, I can spot offense after offense of HOA rules, I have a hard time taking the rules seriously seeing this.
    Back to my traffic example: "As I drive down the freeway, I see car
    after car passing me at over 80 mph. I have a hard time taking the
    speed limit seriously seeing this." Don't try that one on the judge
    the next time you get a speeding ticket when the cop culls you from the
    pack for doing 75, because he couldn't catch up to everybody else.
    Or, in kindergarten terms: "Just because everyone else is doing it
    doesn't make it right."
    As I understand it (which admittedly isn't very far at all) HOAs are strange little pockets of self-governance that may not be subject to conventional legal protocols.
    Yes, they are strange little pockets, but yes, they do have to at least
    follow their own, internal rules as set forth in their Bylaws (i.e.
    follow due process) if they want the courts to enforce the only
    ultimate sanction that the HOA can impose, i.e., a lien against your
    property.

    You don't really want to ignore the HOA and get a lien against YOUR
    property for that clothesline just because you're upset that your
    neighbors are getting away with a junk car on cinder blocks in THEIR
    front yard, do you?

    OTOH, the HOA usually only learns about potential violations when they
    are reported by some fellow resident. If your neighbors are making a
    covenant-violating nuisance, then report THEM to the HOA. Just make
    sure your own house is in order when the inspectors come to the
    neighborhood.

    Good luck,

    --
    This posting is for discussion purposes, not professional advice.
    Anything you post on this Newsgroup is public information.
    I am not your lawyer, and you are not my client in any specific legal
    matter.
    For confidential professional advice, consult your own lawyer in a
    private communication.
    Mike Jacobs
    LAW OFFICE OF W. MICHAEL JACOBS
    10440 Little Patuxent Pkwy #300
    Columbia, MD 21044
    (tel) 410-740-5685 (fax) 410-740-4300


  5. #5
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    Default HOA's: Consistent vs. Selective Enforcement of CC&Rs?

    Mon, 15 May 2006 11:58:49 -0400 from <mahgni@earthlink.net>:
    My Homeowners Association (HOA) has rules ..., no clotheslines. My question is, if I put a clothesline out can the HOA come down on me if they do not enforce _other_ offenses?
    Yes.

    They can even come after you for clothesline even if they don't come
    after someone else.

    The question in legal terms is whether you broke the rules, and
    whether the HOA is following its own rules in sanctioning you.
    Whether anyone else broke is irrelevant.

    If yo could prove that rules were enforced against you and not
    against others based on racial or religious criteria, you might have
    a case. But as 'm sure you recognize, that's probably not the case,
    and even if it were it would be immensely difficult to prove.

    Now *if* the HOA's own rules require it to go after every offender,
    that would be a different matter. But I'd be awfully surprised if the
    rules were written that way.

    --
    If you e-mail me from a fake address, your fingers will drop off.

    I am not a lawyer; this is not legal advice. When you read anything
    legal on the net, always verify it on your own, in light of your
    particular circumstances. You may also need to consult a lawyer.

    Stan Brown, Oak Road Systems, Tompkins County, New York, USA
    http://OakRoadSystems.com


  6. #6
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    Default HOA's: Consistent vs. Selective Enforcement of CC&Rs?

    mahgni@earthlink.net wrote:
    My Homeowners Association (HOA) has rules against somethings that Ithink are probably rather typical, no basketballhoops left out, gardening equipment needs to be put away,motorsports equipment needs to be stored in the garage ANDthe point of this post, no clotheslines.if I put a clothesline out can the HOA come down on meif they do not enforce _other_ offenses?As I drive around the subdivision, I can spot offense afteroffense of HOA rules, I have a hard time taking the rulesseriously seeing this.
    What other offenses? That a substantial number of your nearby
    neighbors put out close lines, too, and that you alone have been
    singled out for enforcement? How substantial or long-lasting and
    related in terms of actual or likely adverse impact on others compared
    with your hypothesized disregard of a "No close lines!" ban?
    HOAs are strange little pockets of self-governance that may not be subject to conventional legal protocols. I am hoping someone on this group could provide some enlightenment.
    You are right about the de facto "governance" element, including that,
    in effect, nominally entirely private HOA's sometimes exhibit elements
    of public government - a social/cultural/political/economic reality
    that has increasingly become the subject of law analytic (e.g., law
    review) writing, judicial rulings, and legislation in similar but also
    varying ways in different parts of the country.

    Note, too, that this is a phenomena that has occurred only to the
    degree that individuals who choose to purchase condos or co-ops or
    stand-alone houses in developments subject to HOA deed restrictions
    and governance choose in so doing to cede rights they would have if
    they had not made the choice to subject themselves to HOA land use
    restrictions. However, what you think you mean by "legal protocols"
    is more than a little vague by not attending to (or, in your newsgroup
    posting, reporting) the mutual contractual rights/remedies of concern
    to you spelled out in whatever or your and your HOA's version of
    agreed such "protocols" and, in that connection, whether what you
    would claim to be an HOA disregard with respect to some residents of
    HOA rules/regulations applied to others amounts to a pattern of
    arbitrariness/capriciousness or discrimination that ought be ruled
    unlawful.


  7. #7
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    Default HOA's: Consistent vs. Selective Enforcement of CC&Rs?

    DG wrote:
    To answer your question: restriction violation A does not pardon restriction violation B. "Selective enforcement" is illegal - but selective enforcement happens over the same issue, not differing issues.
    You raise some excellent, practical points for OP, and in general I do
    not disagree. But I would like to clarify the term "selective
    enforcement." The way I used it in my reply to OP simply meant that
    some violations were ticketed and not others, whether of the same or
    different type. Selective enforcement in that sense is not illegal,
    and whether we are talking about a private HOA board or an actual
    constituted public law enforcement officer, it is practically
    impossible to cite every violation, every time. The mere fact that OP
    got cited when his neighbor didn't does not give rise to any kind of
    claim of illegal selective enforcement and he gets no legal help from
    the fact that he, but not others, got cited.

    But the kind of selective enforcement I think DG and some other
    responders are talking about is different. It _IS_ illegal for the
    HOA board, or the cops, or anyone else who is required to observe fair
    and equitable practices, to target certain individuals or groups for
    more intense enforcement than they apply against others doing the same
    thing.

    On the one hand, if they target people on the basis of their membership
    in a protected classification (race, gender, religion, national origin,
    etc.) such selectivity is likely a violation of various
    anti-discrimination-in-housing laws (in the HOA context) and/or
    constitutional protections (in the context of public law enforcement).

    And in either context, if a particular individual, even without such
    protected class as a basis, is being singled out and subjected to more
    than just random luck of the draw vis-a-vis his neighbors, e.g. due to
    a vendetta by some evil-minded HOA board member, in that case the
    board's actions could be legally challenged as unenforceable in court
    because they were irrational, arbitrary, and capricious, which is also
    a violation of the fundamental fairness of due process that enforcement
    and adjudicative proceedings (including the HOA board's private,
    internal ones) are supposed to provide.

    --
    This posting is for discussion purposes, not professional advice.
    Anything you post on this Newsgroup is public information.
    I am not your lawyer, and you are not my client in any specific legal
    matter.
    For confidential professional advice, consult your own lawyer in a
    private communication.
    Mike Jacobs
    LAW OFFICE OF W. MICHAEL JACOBS
    10440 Little Patuxent Pkwy #300
    Columbia, MD 21044
    (tel) 410-740-5685 (fax) 410-740-4300


  8. #8
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    Default HOA's: Consistent vs. Selective Enforcement of CC&Rs?

    Stan Brown <the_stan_brown@fastmail.fm> wrote:
    : Mon, 15 May 2006 11:58:49 -0400 from <mahgni@earthlink.net>:
    :> My Homeowners Association (HOA) has rules ..., no clotheslines.
    :>
    :> My question is, if I put a clothesline out can the HOA come down on me
    :> if they do not enforce _other_ offenses?

    : Yes.

    : They can even come after you for clothesline even if they don't come
    : after someone else.

    : The question in legal terms is whether you broke the rules, and
    : whether the HOA is following its own rules in sanctioning you.
    : Whether anyone else broke is irrelevant.

    : If yo could prove that rules were enforced against you and not
    : against others based on racial or religious criteria, you might have
    : a case. But as 'm sure you recognize, that's probably not the case,
    : and even if it were it would be immensely difficult to prove.

    : Now *if* the HOA's own rules require it to go after every offender,
    : that would be a different matter. But I'd be awfully surprised if the
    : rules were written that way.

    This is 100% false here in TX. The law states that HOAs MUST NOT
    enforce covenants selectively for ANY REASON (not just race, etc that you
    listed above.) Showing that another neighbor had a clothesline that was
    ignored by the HOA is an absolute "defense" to any action by the HOA
    against another clothesline.

    Again, this is the law in TX. Your state laws may be different.
    I am not a lawyer.

    Joe


  9. #9
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    Default HOA's: Consistent vs. Selective Enforcement of CC&Rs?

    Mike Jacobs <mjacobslaw@gmail.com> wrote:
    mahgni@earthlink.net wrote:
    My Homeowners Association (HOA) has rules against some things that I think are probably rather typical, no basketball hoops left out, gardening equipment needs to be put away, motorsports equipment needs to be stored in the garage AND the point of this post, no clotheslines.
    Sounds like the development where I live too.
    My question is, if I put a clothesline out can the HOA come down on me if they do not enforce _other_ offenses?
    Of course they can. Ask it in a different context: can the cops give you a ticket for running a red light even if they didn't give you a ticket for also speeding as you did it? Or can they give you a ticket for speeding when the guy who just passed you got away? Selective enforcement is not only legal, it's virtually unavoidable. In just about any context you can think of, the powers that be can't possibly catch, cite, and prosecute every single offense being committed all the time, every time. Or maybe, with a little help from the NSA's phone taps, they can? <g> But we wouldn't want to live under such a "piolice state", would we?
    As I drive around the subdivision, I can spot offense after offense of HOA rules, I have a hard time taking the rules seriously seeing this.
    Back to my traffic example: "As I drive down the freeway, I see car after car passing me at over 80 mph. I have a hard time taking the speed limit seriously seeing this." Don't try that one on the judge the next time you get a speeding ticket when the cop culls you from the pack for doing 75, because he couldn't catch up to everybody else. Or, in kindergarten terms: "Just because everyone else is doing it doesn't make it right."
    But if you can show the same cop gives you a ticket daily for 71 in a 70mph
    zone then you can maybe show he's singling you out for enforcement, which
    would be illegal. As long as the cop is simply selecting cars at random to
    stop (or, possibly, even if he only stops red cars but isn't selecting based
    on race, age, etc.), even if he only stops 1% of the speeders, he's doing
    everything by the book and fully legally.

    --
    Mike

    -------------------------------
    "Our enemies are innovative and resourceful, and so are we. They never stop
    thinking about new ways to harm our country and our people, and neither do
    we," George W. "Shrub" Bush Aug 5, 2004


  10. #10
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    Default Great Thread: What about the bigger quistion (s).

    This was a great site to read. The problems with enforcement in our HOA seem larger than just selective enforcement. How enforcable are are covenants and bylaws? And as someone else pointed out...even if they are enforcable, how much money and time will the Board spend fighting a member who refuses to comply? JIM Thanks all for all you comments so far.

  11. #11
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    Default HOA and speed limits

    Since this was a HOA I thought I would ask if anyone knows if a HOA in VA has legal authority to set a speed limit?
    Our sub division is not part of the town limits. It is considered within the county and rural. The HOA wants to set a speed limit of 15 mph. Can they legally due this? Where would I go to find the law in this matter?

    Thank you

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