“But Jimmy’s got one…”

HOA Compliance Inspection FairnessTired of hearing phrases like that each time you send a violation letter?  Tired of feeling like you are back in grade school?  Enforcement of covenants seems to bring out the same questions of fairness we had when we were all children.  We want to be treated fairly and we don’t want to be told we cannot have something that someone else has received.  Does it matter?  Can we tell homeowners that this is about them and not about their neighbor and really expect them to accept that?  Legally it does matter.  Covenant enforcement must be fairly enforced and uniformly applied. 

Covenants must be enforced consistently and uniformly.  In large communities most associations employ a manager who drives through the community and inspects the properties.   In some other communities, these inspections are performed by board members and committees.  But does this mean all communities uniformly and consistently apply their rules.  No, because there are many places that cannot be seen on inspections.  For those types of places associations rely upon the neighbors to report violations.  So if Homeowner A lives next door to Gladys (from Bewitched) you can be certain that the association knows everything about Homeowner A’s backyard.  However, if Homeowner B lives next door to Eddie Munster it is unlikely that the association knows anything about Homeowner B’s back yard.

This means that Homeowner A and B can both try to build a shed in their back yard and only Homeowner A will receive a violation notice.  This would not be considered selective enforcement and the association can enforce the prohibition against owner A and not against owner B.  Why? Because the association doesn’t know about owner B.  So the board in this scenario is not purposely ignoring owner B; it just doesn’t know owner B is doing something wrong.  If owner A or another owner reports owner B to the association, then the association will need to take steps to enforce the covenants against owner B.

Can an association always say it did not know about one violation and get away with not enforcing?  No.  Associations are required to do their best and use due diligence to enforce the covenants.  So when an association hires a manager, creates a committee, or takes on doing its own inspections, it is required to use due diligence to uniformly and consistently enforce the covenants.  Case law has set forth that associations are not required to be perfect with enforcement, but they are required to do their best and act in good faith to enforce the covenants.

A very common situation which can result in accusations of unfair enforcement, is when a developer grants variances in order to sell units.  Many times this is done even without authority in the governing documents.  Then the developer leaves and the homeowner board works very hard to enforce the covenants but is confronted by owners wanting to know why the developer allowed such improvements while in control.  In this situation, a new board denying the improvements is not selective enforcement.  While it may not seem fair, it is what the documents require.  The homeowner board did not allow one owner to have something and deny another owner the same request.  The homeowner board consistently said “no” because the documents don’t allow it.  In situations like that, all that can be done is for the association to continue to enforce the documents as written, or if most homeowners want the restrictions changed, consider an amendment.  Many times an explanation to the community of what happened and what the documents allow eases the situation.

Boards should work to consistently and fairly apply and enforce their documents.  They should also take time to explain if there is an appearance of unfairness.  Children, adults, and even pets recognize and demand fair treatment.  When two dogs sitting next to each other complete the same action — shaking paws for example — but don’t receive the same reward, the jilted dog stops playing along.  When people are not treated fairly OR perceive they are not treated fairly, it upsets them and they stop following the rules.  Take the time to make sure your association has a covenant enforcement policy that makes enforcement of the covenants uniform and consistent, and if prior acts cause an appearance of unfair treatment, take the time to explain what happened.

By: Debra J. Oppenheimer