HOA selective enforcement can erode homeowners’ trust in the board. Part of the HOA board’s responsibilities is to ensure everyone follows the community rules. With that, they should also make a point of doing so fairly.
What Is Selective Enforcement in HOA Communities?
HOA selective enforcement happens when the HOA board applies rules and regulations inconsistently. The board is obligated to ensure all rules are followed.
However, there are scenarios in which they may favor some people over others. When this happens, it creates a dangerous precedent that would put order in jeopardy and expose the HOA to liability
Common Examples of Selective Enforcement
Selective enforcement can become a major issue, creating a rift between homeowners and the HOA. If you notice fellow board members doing so, it’s best to bring up the issue and resolve it.
But what are the signs you should look for? Here are the common ones to consider:
- Unfair or Inconsistent Enforcement: This occurs when the HOA applies rules to some people while ignoring violations by others.
- Retroactive Enforcement: This occurs when the board suddenly applies rules retroactively to homeowners’ actions that were previously overlooked.
- Targeting: This HOA selective enforcement happens when the HOA only nitpicks or targets a specific individual or a small group of homeowners.
- Unreasonable Fines and Penalties: Usually, in tandem with targeting, one form of selective enforcement is imposing harsher punishments on a small group of homeowners than on others for the same infraction.
- Selective Action: This occurs when the HOA addresses complaints from some residents immediately while delaying or ignoring concerns from others.
- Lack of Decision Transparency: This form of HOA selective enforcement occurs when the HOA doesn’t disclose the reason for a violation or the punishment.
- Disregarding Enforcement Procedures: This happens when the HOA tends to ignore established procedures from the governing documents when enforcing rules
Is Selective Enforcement Illegal?
Generally, HOA selective enforcement is unlawful or, at the very least, legally actionable. Usually, the HOA’s governing documents include stipulations for enforcement, including rules and procedures.
It is also best to check federal and state laws that may apply. Currently, there’s no overarching federal legislation specific to selective enforcement in HOAs. However, federal laws addressing discrimination, such as the Fair Housing Act, may apply.
HOA Selective Enforcement in Oregon
In Oregon, as at the federal level, there’s no specific legislation that focuses solely on selective enforcement. Instead, state laws that can be considered in addressing selective enforcement are also tied to preventing or addressing discrimination.
For example, ORS 659A.145 addresses disability discrimination in real property transactions. It also requires HOAs to provide reasonable accommodations in HOA rules, policies, and practices, as well as in services they provide. These accommodations are only applicable if they’re needed to ensure the homeowner has an equal opportunity to use and enjoy a particular property.
Another Oregon statute that may apply is ORS 659A.425. This legislation covers the review of housing policies for “facially neutral policies.” It helps authorities identify violations that may appear neutral to the general public but have a negative effect on protected groups.
Can Homeowners Sue HOA for Elective Enforcement?
Given that HOA selective enforcement is legally actionable, homeowners can sue the association for it. If a resident notices that they are being targeted or unfairly penalized, they may file a legal complaint against the HOA.
As much as possible, it would be best to communicate with the resident before it escalates to legal action.
How to Avoid Selective Enforcement
In some cases, HOA board members may become overwhelmed with rule enforcement. It is possible that this is too much for them to handle. However, that doesn’t excuse them from their enforcement.
Here are some best practices to avoid HOA selective enforcement.
Creating Clear and Comprehensive Policies
Having vague and lax rules leads to misunderstandings and multiple interpretations. This leads to inconsistent enforcement.
Given this, the first step to avoid selective enforcement is to review your rules and how they’re written. If you find policies that are confusing and vague, put in the effort to get them amended. Make sure they are clear and comprehensive.
Educate Board Members and Residents
While everyone in the HOA needs to follow the HOA’s governing documents, it’s still possible that not everyone knows all the community’s rules. This applies to both board members who need to enforce rules and HOA members in general.
However, ignorance of the rules doesn’t excuse people from liability. To prevent board members from engaging in selective enforcement, you need to ensure they know the rules. Having workshops and educational training would help with this knowledge gap.
Uniform Enforcement of Rules
When you enforce rules, do so consistently. HOA members need to know how to disregard biases in doing so. Similar violations should have similar consequences.
Additionally, there should be no exceptions to any rules, unless otherwise stipulated in the HOA’s bylaws or in federal or state legislation.
Provide Documentation
As part of the enforcement process, you need to document the violations in question. The HOA should have detailed records of the violations, such as the date when they happened and actions taken by the board.
Documentation provides the HOA with proof of the violation. It helps support the notion that the HOA has imposed penalties within reason.
Having an Appeals Process
In the spirit of fairness, it is best practice for the HOA to be open to appeals. Your HOA should establish an appeals process that allows your residents to challenge enforcement decisions.
Having this in place gives the HOA an opportunity to review decisions and see whether decisions are sound. Additionally, an appeals process demonstrates the board’s commitment to fairness.
Reinforcing Fairness
Whether intentional or accidental, HOA selective enforcement is frowned upon by residents in a community. For harmony and order in a community, the HOA board needs to ensure policies are implemented equally. This helps minimize issues and conflicts in the community, while building better trust between homeowners and the association.
CWD Group offers HOA management services, including meeting management, to community associations in Oregon and Washington. Call us today at 503-488-2008 or contact us online!
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