Facts About Selective Enforcement By an HOA
As a member of a Homeowners’ Association (HOA), you probably already know that your governing documents include covenants, rules, and restrictions about how you can (and cannot) use your property. Your deed and the association’s Bylaws may include other restrictions. These rules may cover what type of landscaping you can put in, whether you can paint your driveway, what kind of approvals you need before you can add to your house, or even whether you are allowed to rent your home to someone else. If you break these rules, the homeowners’ association may fine you or force you to comply. If you find yourself at the receiving end of an HOA punishment, you’ll need to know what your rights are. This article will help you understand “selective enforcement” and how it applies to your homeowners’ association and the rules you have to follow.
What is Selective Enforcement?
When homeowners decide to buy a home in a community governed by a homeowners’ association, they agree to follow certain standards and rules. If a homeowner breaks any of those rules, he or she is subject to the homeowners association’s enforcement power, granted by the applicable state law and the governing documents. “Restrictive covenants conditioning the right of property owners to make improvements on the approval of a homeowners[‘] association or architectural committee are generally valid and enforceable.” Thus, your association has the power and authority to enforce “restrictive covenants” that govern your landscaping, changes to your property, and how you use your property.
Selective enforcement is when the homeowners’ association enforces a particular rule against only one homeowner, or possibly against a small group of homeowners, but does not enforce that same rule against the entire community. For example, your community may have a rule that requires all homeowners to bring in their trash cans by 6 p.m. on the day of trash pickup. If everyone on your street doesn’t get home until after 6 p.m. on those days (and so they all leave their trash cans at the curb past the deadline), but only you get a notice and fine from the association, then the HOA is selectively enforcing that rule. Generally, this is not allowed.
The governing documents for the community should include procedures for enforcing the covenants, rules, and restrictions that apply to the use and maintenance of your property. Some homeowners’ associations only enforce rules when a violation is reported, such as if your neighbor calls the association and tells them you don’t bring in your trash cans on time. In other communities, the property manager or other designated representative may do routine inspections of the neighborhood and record violations. For example, the property manager could patrol the neighborhood every trash day at 6:30 p.m. and note whose trash cans are still at the curb, and then issue violations to those homeowners. Both methods are acceptable, so long as they conform to the established procedures and they are used uniformly.
The homeowners’ association cannot be “arbitrary and capricious” in its enforcement of the rules. That means there must “be some rational relationship of the decision or rule to the safety and enjoyment of the [common interest community].” It also means that HOAs have an obligation to enforce the rules consistently and fairly, for the good of the community. Some states, such as Arizona, have laws that expressly require homeowners’ associations to enforce the rules uniformly while others, such as Colorado, do not, although in those states, the law generally recognizes an implied obligation to do so. Regardless of the applicable state laws, this “uniform enforcement” requirement should be included in the governing documents as well. If an HOA is inconsistent in its enforcement of a certain rule, it may have, in the eyes of the law, waived its right to enforce the rule in the future. But, establishing such a waiver is difficult.
There are several reasons why an association’s board may selectively enforce a rule, most of which are not nefarious. If, for example, an the association’s board of directors only enforces rules when a violation is reported as opposed to doing routine inspections of the neighborhood, the enforcement pattern will largely depend on whether one’s immediate neighbors are sufficiently invested to report alleged violations. Additionally, sometimes new board members may feel that the previous board was too lax, resulting in the enforcement of rules that the previous board members did not enforce. Or, there may be an uptick in a certain type of violation and the board may misguidedly believe they need to “make an example” out of one or more homeowners. Regardless of the cause, the result is the same – improper selective enforcement.
What to Do About Selective Enforcement
The first way to avoid any issues with selective enforcement of the rules against you is to follow all of the rules you agreed to when purchasing your home. If you plan to renovate, re-do landscaping, or add on any structure to your property, you should always consult your HOA governing documents first to be sure you follow the proper procedure for getting approvals and that your plans fall within the neighborhood guidelines. You don’t want to have to tear down that beautiful new deck if it extends too far away from the house! For the day-to-day rules, such as our trash can example above, it is a good idea to periodically review the HOA documents to be sure you understand all of your obligations. And, of course, you should confirm the rules before you report any of your neighbors for possible violations.
If you do find yourself on the receiving end of a violation notice that you think is a selective enforcement of the rules, you have options. First, determine whether the rule says what the association’s board says it does, and whether you did in fact violate that rule. If you believe you have been unfairly targeted for violation of the rule, you can draft a (polite!) letter to the homeowners’ association outlining your case. For example, imagine you build a deck without getting the appropriate HOA approval and the deck is made of a type of wood not permitted by the HOA rules. The homeowners’ association might notify you that you are required to remove the deck. However, what if several other homeowners have decks made of that same wood? Your letter to the HOA should note those other properties and, if known, how long they have had their respective decks. If you are aware of any reason why you may be being targeted while others are not, include that in the letter as well. Be careful, though, as you don’t want to come across as paranoid or as having a grudge against someone in the community. A lawyer with experience in these matters can help you draft a strong and appropriate letter.
A second option is to go to an HOA meeting and raise the issue there. If there is not a meeting scheduled in the near future, consult the association’s governing documents to determine if you have the right to call one, and if so, how to do that. You also should determine how to have your issue added to the agenda, if necessary. You’ll want to take any evidence of selective enforcement with you to the meeting.
If you cannot get the issue resolved by appealing directly to the board, you may need to bring a lawsuit against the homeowners’ association. Note that in many cases dealing with restrictive covenants (those rules that limit how you can use your property), the association might actually sue you if you don’t comply. For example, if your community rules require that each home be painted every ten years but you have not painted yours in twelve years, the association may bring a lawsuit asking the court to order you to paint your house. Regardless who initiates the lawsuit, your argument likely will be the same – the HOA’s failure to consistently and uniformly require all homeowners to paint their house every ten years was an effective waiver of the association’s right to enforce that rule against you. As mentioned above, this is a difficult bar to meet – you will have to show that there have been frequent violations of the rule by others and that the HOA did not enforce the rules against those homeowners.
A lawsuit is expensive and stressful. You should consult with a lawyer experienced in these matters to determine if you are likely to be successful in a court case. In our house-painting example, it’s probably less expensive and less trouble to just go ahead and paint the house, but in other situations, you may want to fight. Ideally, you will continue to follow the HOA rules, and the homeowners’ association will not selectively enforce the rules, and you will never have to make that decision.
 Note that, generally, it is the board of the HOA who actually assesses the violations.
 Villages of Brentwood Homeowners Ass'n, Inc. v. Westermann, 1998 WL 289342, at *3 (Tenn. Ct. App. June 5, 1998).
 Id. (quoting Worthinglen Condominium Unit Owners' Assn. v. Brown, 566 N.E.2d 1275).
 See College Book Ctrs. v. Carefree Foothills Homeowners’ Ass’n, 241 P. 3d 897 (Ariz. Ct. App. 2010): “to establish waiver by the HOA, [homeowner] was required to prove there were frequent violations of the CC&R provision prohibiting non-residential structures” that had not been punished, and finding that two previous violations by other homeowners were not sufficient to show waiver of the HOA’s right to enforce the rule.
 But note that, in some cases, the HOA board may notify the community that it will start to enforce rules that had not been enforced previously; this likely would not be considered selective enforcement.
 Note that the goal is not to force the other homeowners to remove their decks, but to highlight that the HOA has not been consistent in its enforcement of the rule about the type of wood permitted.