Can I defend myself against selective enforcement by the HOA?

Selective enforcement is an illegal act that a homeowner association (HOA) pursues to punish a member who has violated the terms of the governing documents. Although it is an HOA’s job to enforce a community’s rules and regulations, this enforcement should be consistent, fair, and reasonable.

In this article, I define the term ‘selective enforcement’ and give instances where it applies.

In addition, I advise when one can use the defense of selective enforcement.

What is selective enforcement?

Selective enforcement occurs when a homeowner association effectively singles out a specific homeowner and targets them with violations and fines while allowing other owners in the planned development community to break the same rules without repercussion.

There are two types of instances of selective enforcement.

  1. When an HOA chooses to enforce some rules but fails to enforce other regulations.
  2. When an HOA enforces the same rules differently against one owner and another, typically choosing to enforce against one owner but not others.

A real-life scenario of selective enforcement can involve the HOA allowing your neighbor to play loud music while imposing fines or other forms of punishment against you for doing a similar thing.

What are some common forms of selective enforcement?

Usually, the HOA uses selective enforcement in the following areas:

  • Parking restrictions
  • Pet restrictions mainly regarding ownership of pets
  • Age restrictions
  • Fencing restriction
  • Architectural restriction, e.g., balcony enclosures

When can I sue a homeowner association for selective enforcement?

An HOA can decide to “punish” you for violating the association by-laws or the covenants, conditions, and Restrictions (CC&Rs).

When such an instance happens, and you notice that your punishment is inconsistent with that given to people who have violated the same rules, you can challenge the punishment in court.

However, it would be best to approach the association’s board to discuss the case first. This process is usually done in writing, but the process should be defined in the CC&Rs.

The lawsuit against an HOA prevents singling out a specific homeowner and targeting them with violations and fines while allowing other owners in the community to commit the same violations without repercussions.

To have a strong lawsuit against your association, you must fulfill the elements of selective enforcement.

For example, if you are a condo owner in Florida, then The Florida Condominium Act states that

“The defense of selective enforcement shall contain all examples of selective enforcement upon which the respondent depends, shall indicate the unit(s) to which each example pertains, shall identify the unit owner(s), how long the violation has existed, and shall indicate whether the board knew of the existence of the violation(s).”

Generally, regardless of what state you live in, to successfully sue a homeowner association, one needs to:Can I defend myself against selective enforcement by the HOA

  1. Prove selective enforcement of rules regarding how you conduct your affairs at your condo unit.
  2. Identify themselves as the owner of the condo unit,
  3. State how long the selective enforcement has existed, including whether the board was aware of the violation(s).

Among others, take photos or record video evidence of any violations. Also, remember to write down the times and dates when the rule was not enforced. It is important to get board meeting minutes showing the inconsistencies.

Conclusion

Before you sue your association, it is essential to go through your state’s laws concerning the governance of HOAs.

Most states require HOAs and owners to resolve disputes through Alternative dispute resolution methods before they initiate legal proceedings at the courts of law. For example, in Florida, condo disputes should be resolved by arbitration at the Florida Department of Business and Professional Regulation (DBPR). If arbitration fails, then one can resort to a lawsuit in court.

Nonetheless, one should consult an attorney when they want to file such a lawsuit.

Failing to get proper legal advice can result in losing the suit, and the court may order you to pay the other party’s attorney’s fees.