OK or Not? HOA Sues Three Owners When More Are Allegedly Also in Violation
HOAleader.com - Tip of the Week - March 15, 2024
In this week's tip, we use a news report about a North Carolina HOA to explore the legality and risks of piecemeal enforcement against owners.
In that case, the HOA reportedly has more than three owners with fences who are breaking the community's fencing rules. But the HOA is pursuing enforcement against just those three owners. In fact, the board president reportedly resigned last summer, allegedly because he believed the HOA was pursuing violations the wrong way.
So, we've checked in with our experts. Would it ever be wise to look at, say, 10 violators of a particular rule and say, "You three! You're in big trouble!"
There's no question that, if you know of many owners in violation of any particular provision of your governing documents, it's best to seek to get them all back into compliance. But lawyers differ on the process for getting to that point—whether it must all be immediate or whether you can stagger your efforts.
For Jonathan R. Zim, a partner who advises community associations at Eisinger Law in Hollywood, Fla., which represents 600-700 associations throughout the state, the best approach is all or nothing. "If you don't provide notice to all owners allegedly in
violation, it's called selective enforcement," he says.
"You also need to uniformly enforce your documents against all those violators, or you could potentially waive your right to enforce the rule," says Zim. "There's no rule in Florida
that says how many violations have to go unnoticed or how many years have to go by before you waive your right to enforce.
"But if you don't enforce your community's rules, you might have to start over again before beginning to enforce
again," he says. "You'd have to republish the rules and might potentially need to make accommodation for those individuals who've relied on your lack of enforcement. Or you could republish the rules and just give everybody a certain number of days to come into compliance."
On the other hand, the Uniform Common Interest Ownership Act and many state laws that follow its template do permit condos and HOAs to do enforcement as they see fit, reports Patricia A. Ayars, founder of Ayars & Associates in Glastonbury, Conn., who has been practicing association law for more than 30 years.