When the homeowner’s association doesn’t uphold rules. A loyal reader offers their insight into how much power the HOA risks losing.
Q: You were right on the money with your recent answer to a homeowner who complained that the homeowner’s association (HOA) was not enforcing its rules and regulations and was sometimes waiving some of the rules for some of the homeowners. I would like to expand a bit.
In many states, if the HOA abandons enforcement of its rules, even one of its “major” rules (like an architectural review), it may lose the right to enforce all of its rules, not just the one it abandoned. In addition, some states allow an aggrieved party to file a “qui tam action.”
In addition, your questioner said that his HOA board gave permission (also known as a waiver) to the owner to have a third dog, which is one more than the rules allow. These waivers really constitute a “spot amendment” to the rules. Without a formal amendment, these could be challenged in court.
I voice no opinion as to the standards used to evaluate such a waiver, as there might be no standards at all, just a “seat of the pants” consideration, or whether members of the HOA board like the homeowner or not. This arbitrary and capricious application is generally not allowed – nor should it be.
A: Thanks for your email, and we appreciate your insight into the homeowner’s association (HOA) and condo association management issues and how they apply to homeowners.
We won’t get into your “qui tam” suggestion, which is that homeowners could file an action against their HOA board of directors for improper acts the board might have committed, such as the unequal application of association rules.
But as we suggested in our prior column, aggrieved homeowners should consult with an attorney on their specific issues that they have against their HOA associations to learn what legal options they have. But we believe that any meaningful action against a homeowners association should be a last resort, as you still have to live with your neighbors and this sort of legal action can quickly become expensive and time-consuming.
While there may be statutes that allow you to recover your attorney’s fees, the fact is that you and your neighbors would be ponying up for those fees. Again, these are the folks you have to live with and legal action should be a last resort. Having a conversation about the rules and their enforcement is the correct first step so you fully understand why the board or association management has acted as it has.
You make a great point, however, on the issue of associations arbitrarily enforcing rules.
If you don’t enforce all of the rules on the books, we agree that it could be problematic enforcing some or all of the rules in the future. And it can get a little squirrely.
There are dozens of different permutations to the number of rules, types of rules, and manner of enforcement of these rules, so we don’t want our readers to believe that if an HOA board takes action which doesn’t strictly adhere to the rules of the association, a homeowner would automatically be able to claim that all rules are unenforceable, that a specific rule is unenforceable or that you have an automatic right to sue your board of directors.
There are times that some rules can’t be strictly enforced and there are times where rules must be enforced uniformly and exactly as intended. We don’t think all rules carry the same weight and don’t know if every judge looking at a specific case will see it the same way and strike down a specific rule, or all the rules, based on one instance.
We look forward to hearing from any other readers who have experienced similar situations, or attorneys who have represented homeowners who have suffered from unequal enforcement of association rules.
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