Avoiding HOA Rule Selective Enforcement Claims

April 26, 2012
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Q: Do the courts hold an association responsible for enforcing every community rule?

A: How strictly HOA rules are enforced varies from community to community. Some rules and regulations are necessary for a board to enforce, especially when a member creates a problem that could affect the health and safety of other members. In such cases, the board must act, even if legal fees were to accrue.

However, a board can have many good reasons for deciding not to enforce a restriction, rule, or regulation—such as petty violations and temporary violations—but with good reason. A Louisiana case where a member sued an association for not enforcing all of its restrictions and rules set forth in the community’s governing documents is a good example of what can go wrong when choosing to enforce HOA rules. The member had counted at least 300 violations since October 2005, including vehicles allowed to be parked on the street, high grass and weeds in yards, loose dogs and cats digging in flower beds, and garage doors left open.

The member asked the court to declare that the association not only has the power but a duty to enforce all the rules contained in the governing documents. A lower court granted judgment without a trial in the association’s favor. A Louisiana appeals court upheld the lower court’s decision. The court ruled that the governing documents did not impose a duty on the association to legally enforce every rule violated by a member. Rather, the governing documents were clear in giving the association’s board of directors discretion in enforcing the rules. The association explained that it was not practical or economical to enforce every violation. Some violations may be more irritating to one member than to another, and a violation may be deemed not actionable by a majority of the association [Williams v. Southern Trace Prop. Owners Assn., April 2008].

Beware that there are risks if you fail to enforce rules consistently, such as claims of arbitrary enforcement, discrimination, or favoritism. If lack of enforcement becomes common, the association runs the risk that the restrictions, rules, and regulations will be waived and will no longer be enforceable at all. Basically, if the board fails to enforce a rule against one member, but not another in a similar situation, the board may have waived its right to enforce that rule against any other members. A board can’t enforce the rules in an arbitrary and capricious manner. This means if the board does not enforce a rule in one situation, it must allow all members in similar situations to disregard the rule.

However, one way to protect a community from arbitrary enforcement, discrimination, or favoritism is to provide a method or forum for the board to tell members why it is refraining from its enforcement activities. Having a full debate and discussion in an open session, examining why the board wants to ignore certain violations, will give the board some protection if a member sues for failure to enforce governing documents. Look for a feature on selective enforcement claims in an upcoming issue of the Insider.