Selective enforcement in HOA communities may seem like a small problem, but it can quickly lead to serious legal consequences. Board members must practice fairness and consistency when enforcing the association’s rules. Even the perception of unequal treatment can expose the association to lawsuits.
What is Selective Enforcement in HOA?
Condominiums and HOAs are known for their strict rules and regulations that residents must follow. These rules can range from parking regulations and pet policies to architectural standards and rental restrictions.
The selective enforcement of HOA rules refers to the unequal application of these rules or unfair treatment of unit owners. More often than not, it takes the form of enforcing rules against specific owners while ignoring similar violations by others. That said, there are other ways to selectively enforce the rules.
Is Selective Enforcement Illegal?
Yes, selective enforcement in an HOA is generally considered illegal. Associations have a duty to apply the rules fairly and consistently, without discriminating against owners. If the board picks and chooses who to penalize, the actions are deemed arbitrary and legally invalid.
While board members don’t really serve time for selective enforcement, there are still real consequences. A court may find board members personally liable for breach of fiduciary duty. This can result in costly fines and damages that D&O insurance won’t cover.
How to Ensure Fairness in Rule Enforcement
In many cases, selective enforcement is unintentional. It’s merely a gap in the board’s practices or downright ignorance. Here are strategies to help avoid inconsistent HOA enforcement.
1. Establish and Communicate Clear Rules
First, board members must ensure that all rules are clearly written in the governing documents. These include the CC&Rs and bylaws. In doing so, the association can avoid ambiguity.
Additionally, boards should practice transparent communication. If there are new rules or changes in existing ones, the board must share them with owners at least 30 to 60 days before enforcement begins. This will give residents time to adjust and comply.
2. Implement a Uniform Process
Rules must apply uniformly to all unit owners. Even the board members themselves are not exempt from the rules. Boards must never show favoritism or bias.
Moreover, associations should use a standard schedule for fines and penalties. It is not a good idea to arbitrarily decide on the fine amount depending on the case. This will only create conflict within the community.
It also helps to show a little consideration. Boards should offer grace periods, starting with a warning for first-time infractions. This is preferable to jumping immediately to penalties. It also helps sow goodwill among residents.
3. Document Every Violation
Every violation must be properly documented. This includes keeping a record of dates, photos, descriptions, and the actions the board took. Furthermore, associations should use formal, written notices to communicate violations. This ensures that all owners receive the same format.
4. Inspect Regularly
Board members must conduct regular or scheduled inspections of the community. This is better than spot-checking only when complaints arise. Consistent inspections help the association avoid claims of harassment or discrimination.
5. Follow Due Process
When owners violate the rules, boards must follow due process (765 ILCS 605/18.4). This includes providing a written notice and allowing owners an opportunity to respond. Unit owners should also be given a chance to appear before the board at a disciplinary hearing before penalties are levied.
Consequences of Selective Enforcement in HOA
Some association boards might think that selective enforcement is no big deal. Yet, it’s that kind of mentality that exposes the association to legal problems.
Below are the ways selective enforcement can negatively impact the community.
Invalidation of Rules
Arbitrary or capricious enforcement can render rules invalid and unenforceable in the future. When owners file complaints or lawsuits against the association on such grounds, a court may rule against the board.
Erosion of Trust and Credibility
Inconsistent enforcement can damage owners’ trust in the board. It can also mess with the board’s credibility or reputation. This breeds resentment within the community. Whenever boards make a decision or take an action, owners are more likely to push back.
Widespread Noncompliance
When the board fails to apply the rules equally, residents are bound to lose respect for the governing documents entirely. After all, if the rules don’t mean anything, then what will compel owners to follow them? This will result in a complete breakdown of the community standards.
Financial Strain
It may start with one HOA selective enforcement lawsuit, but legal actions can quickly accumulate. And these lawsuits can be very expensive to defend.
Worse yet, if D&O insurance can’t cover everything, the board will have to resort to raising dues or levying special assessments. These are the primary revenue streams that associations rely on. When that happens, owners will essentially be paying twice over.
Can I Sue My HOA for Selective Enforcement?
Yes, homeowners can file a lawsuit against their HOA for selective enforcement. That said, it is often difficult to win these cases.
First, owners must know how to prove selective enforcement. It’s not enough to rely on hearsay. There must be documented evidence that the board enforced the rules inconsistently or unfairly.
Additionally, lawsuits usually end up hurting the owner anyway. Even if they win the case, the association will likely turn to the owners to pay for legal fees, often by increasing regular dues or collecting special assessments.
As an alternative, owners should attempt to resolve the dispute with the association directly. Sometimes, a simple conversation with the board will help clear things up.
If that doesn’t work, owners can petition to hold a special meeting and remove the problem board members. The entire association does not need to suffer just because of the actions of one or two ineffective directors.
Prevent Selective Enforcement in HOA
The best way to minimize legal exposure is to implement preventive measures. For the association, this means avoiding selective enforcement by establishing clear rules, applying them consistently, and following due process. In the end, uniform enforcement will benefit everyone involved.
First Community Management provides expert HOA, condo, and co-op management services to communities in Chicago. Call us today at (312) 829 8900 or contact us online to learn more!
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