Board members must be careful not to exercise HOA selective enforcement. Even if it was unintentional or simply appeared to be selective enforcement, it can expose the association and its board to legal challenges. Learning how to avoid it is the first step.
What is HOA Selective Enforcement?
Homeowners associations and condominiums are known for their rules and regulations. These rules help keep the peace, maintain aesthetics, and preserve property values. Still, rules have no meaning if they are not enforced, and it is up to the board to enforce them.
Selective enforcement happens when an HOA applies the rules unequally to residents of a community. Also known as HOA inconsistent enforcement, a common example is when the board penalizes one owner but not another for the same violation.
Board members have a fiduciary duty to act in the association’s best interests. This includes treating all homeowners fairly and equally. Inconsistency can render the rules void and unenforceable. After all, how can a rule remain valid if it doesn’t apply to everyone?
Is Selective Enforcement Illegal?
Some boards may feel tempted to overlook certain violations, especially minor ones. But this type of practice can expose the board to claims of unequal or preferential treatment.
Selective enforcement in HOAs is illegal. Under both the Illinois Common Interest Community Association Act and the Condominium Property Act, association boards have a duty to enforce the rules fairly, consistently, and without discrimination. When the board selectively enforces the rules, it can be deemed a breach of fiduciary duties and render the rules invalid.
Common Examples of Selective Enforcement of HOA Rules
In an HOA or condominium, selective enforcement can manifest itself in several ways. That said, some situations give rise to claims of HOA selective enforcement more than others.
- Architectural Approvals. Selective enforcement happens when the board approves an architectural change request for one owner but denies a similar one for another without justification.
- Landscaping Violations. When the board penalizes one owner for failing to mow their lawn but lets other owners get away with it, it’s a clear example of unequal treatment.
- Pet Policies. Allowing an owner to keep a pet in a no-pets community can call the rule into question. Of course, pet bans don’t apply to service animals.
- Nuisance Rules. Inconsistent enforcement can happen when an owner is allowed to make noise or smoke in a non-smoking area while another gets fined for the same violations.
- Parking Restrictions. Penalizing an owner for parking their car in a restricted section while allowing others to do the same is another example of HOA selective enforcement.
Of course, it is important to remember that boards may have valid cause for differing outcomes. That said, board members must communicate and document those reasons. This way, owners won’t claim selective enforcement.
How HOA Selective Enforcement Impacts the Community
Believe it or not, selective enforcement doesn’t just affect one owner — it affects everyone. When owners witness selective enforcement, they can lose trust in the board. Soon enough, they will question every violation notice and penalty decision, even if they are accurate and valid. Conflicts are bound to arise more frequently, especially between the board and homeowners.
Additionally, unfair treatment can make it harder for the board to enforce the rules in the future. When the board repeatedly ignores violations, owners might conclude that the rule is no longer applicable, so they won’t see a problem with violating it. This can even render the rule unenforceable in the eyes of the law.
Finally, HOA selective enforcement can increase the association’s legal exposure. Homeowners are not afraid to take action against their HOA, even going as far as to file a lawsuit or submit a complaint with a state agency. This can embroil the association in legal battles that span years and cost thousands of dollars in legal fees.
How to Prevent HOA Selective Enforcement
Boards must take it upon themselves to avoid selective enforcement or even the appearance of it. Here are the best strategies to accomplish that.
1. Understand the Scope of Authority
First, board members must understand their roles, responsibilities, and limitations. State laws and the governing documents never give boards unbridled authority. They don’t have the power to enforce the rules however they please.
2. Establish Clear Rules
Vague rules leave a lot of room for interpretation — and for HOA selective enforcement. For example, if a rule simply says that “gardens must be attractive,” boards might enforce it depending on their arbitrary definition of what’s “attractive.”
3. Implement Rules Fairly
Board members must apply the rules equally, regardless of the alleged offender’s identity. This is where many boards falter. If a director has a personal relationship with the offender, they may hesitate to penalize them.
Similarly, if the offender is famous or has a high status, the board might let them go with a simple warning every time. Exceptions must be given out rarely, if ever.
4. Follow Proper Enforcement Procedures
Associations must adhere to the formal enforcement procedures as dictated by state laws and the governing documents. Typically, this means sending written notice, providing an opportunity to cure, and scheduling a disciplinary hearing before levying any fines or penalties.
5. Document Everything
Proper documentation can make a world of difference. Boards should keep detailed records of all violations, including incident logs, notices, hearing minutes, and correspondence. These can serve as proof that the association enforced the rules consistently.
6. Communicate Openly
Associations must educate homeowners on rule changes, enforcement policies, and other updates. Communication tools often include meetings, newsletters, email, online portals, and even social media.
7. Allow Appeals
Board members are far from perfect. If they make a mistake (or homeowners believe they did), there must be a way for others to challenge these decisions. Establishing a formal appeals process is the best solution, as it gives owners a voice and shows fairness.
Can I Sue My HOA for Selective Enforcement?
In general, homeowners can sue HOA for selective enforcement. If the owner wins the case, the HOA can face legal penalties, including fines and damages. A court may even order the association to change its enforcement policies.
That said, there is no guarantee of winning. Homeowners must understand that they must prove to a court that selective enforcement took place. This means presenting evidence and witness accounts. Without careful documentation, an owner may not have grounds to stand on.
Furthermore, lawsuits can be very time-consuming and expensive. They can last months, if not years, and cost thousands of dollars. The plaintiff not only has to shoulder these costs (if they lose), but they also indirectly pay for the association’s defense through HOA dues.
Instead of a lawsuit, owners should try to address HOA selective enforcement internally first. This means approaching the board or management and opening a dialogue. It means attending board meetings, voicing their concerns, and entering dispute resolution. If all else fails, it may be a board problem, in which case a removal may be the only answer.
A Two-Pronged Approach
Both board members and homeowners have a role to play in avoiding HOA selective enforcement. For boards, it means applying the rules fairly and following standard enforcement practices. Meanwhile, for owners, it means keeping the board accountable.
Hillcrest offers HOA management services to communities in Chicago. Call us today at 630-627-3303 or contact us online to request a proposal!
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