How to deal with selective enforcement by an HOA?
February 7, 2015 3:03 PM   Subscribe

How does one deal with an HOA board that is passionate about enforcing certain rules, but indifferent on others?

I'm keeping this intentionally vague and changing some of the details to make it less google-able. 10 years ago my family submitted a request to the committee of our HOA that approves the architectural improvements/plans to lots. We requested to erect a specific type of portable play structure. The committee said one could not be erected...end of story...even though the CC&Rs talk about the limitations their committee can put on such structures, they just chose to say no. We complied. Fast forward 10 years and it's the same 3 individuals on that committee. The neighborhood otherwise has changed significantly--so much so--- that it is clear that the majority of the neighborhood would support the erection of such play structures. In fact, some of our new neighbors want one too but are afraid of pissing of the HOA and want us to take the lead on a fight.

As an aside, but likely not legally relevant, the Board and committees are, for lack of a better term, composed of "old folks" who openly have voiced their preference for peace and quiet and want kids to play inside, but if they want to go outside, they should go to a park...not play in the street or in their own driveways. Complicating factors, though, include dozens of landscaping alterations that were never submitted for approval. When asked why they were not approved by the committee, the answer was, "Well it's not like we're going to ask them to tear everything they've planted." Most egregious was a neighbor who painted their home a million different colors; it looked like a home in the Caribbean. I loved it, but I couldn't get past the obvious point that they never asked for approval for the painting and when it was brought up to the committee, they again replied that they were not going to tell them to repaint their house. To make matters worse, the Board has not met in years despite the "rules" requiring at least annual meetings. They're all WTF, unless families want to accommodate their kids' outdoor play activities; then they clamp down.

To summarize, I want my play structure -- and I think most of my neighbors would support them. HOA hasn't met in years and committee for architectural issues has been three of the same old guys for years. They are not ashamed to say that they don't like children, and don't want to see or hear them.

Any ideas of recommendations on how to proceed with these folks would be appreciated.

Oh, and yeah, I know you are not my lawyer.
posted by teg4rvn to Law & Government (16 answers total) 3 users marked this as a favorite
Any ideas of recommendations on how to proceed with these folks would be appreciated.

Run for the board. Convince two people to join you. If you are really correct and the majority of your building/community agrees with you, then this should be easy to accomplish, and you will no longer have a problem.
posted by saeculorum at 3:11 PM on February 7, 2015 [32 favorites]

Have you considered getting a group of like-minded neighbors together to join the board and fix the problem from the inside?

If you can't beat 'em, join 'em. And then beat them. Beat them like rented mules.
posted by Cool Papa Bell at 3:13 PM on February 7, 2015 [6 favorites]

Get yourself elected to the architectural committee and then vote in your play structure.

Another option would be to have all of your neighbors who would like a play structure simultaneously submit plans for approval. Then, when they're denied, you can then sue the committee for discrimination.

Call for an election, according to the bylaws, if the neighborhood is with you, they'll vote in new folks, who will have similar views.

When I was on the HOA Board, I would have LOVED to have been able to give it up, but no one else wanted to serve.
posted by Ruthless Bunny at 3:15 PM on February 7, 2015 [1 favorite]

If there is a clear pattern of the HOA not bothering to require people to take down/undo things that they do without permission, then has anyone tried just not asking permission and building a play structure?
posted by the agents of KAOS at 3:20 PM on February 7, 2015 [10 favorites]

@ruthless bunny

Haha! Am on committee (one of those details i changed) As I'm sure you're aware, one typically cannot vote on your own plans.

One thing I am seeing. Those of us in the under-50 set are genuinely too busy to to HOA Board stuff, but maybe we'll have to make time. It's the retired folk "who have nothing better to do" who do it. "Get off my lawn!"
posted by teg4rvn at 3:21 PM on February 7, 2015

@the agents of KAOS

Yes. New family moved in and did not read CC&R (who does?) Plopped their "play structure" right up in their driveway. Within a day, the other two committee members told them to take it down.
posted by teg4rvn at 3:23 PM on February 7, 2015

If the board never meets anyhow, how could it take up too much time? Join the board, convince some other young families to do so, allow play structures.

Be careful to follow the rules exactly for calling an election.
posted by jeather at 3:28 PM on February 7, 2015 [4 favorites]

Based on what you're saying, the policy "Better to apologize than ask permission" is a policy that works with your HOA. After all, they're not just going to tell you to take down your play structure!

As a more long term solution, get a bunch of people to run for the board and disband the HOA. What's it to anyone what colour you paint your house, what you plant in your own yard, or where your kids play?
posted by If only I had a penguin... at 3:29 PM on February 7, 2015

Those of us in the under-50 set are genuinely too busy to to HOA Board stuff, but maybe we'll have to make time.

Yep. If you want to live in a good place, you have to make it good. You can't just expect people to take care of it for you in the way you'd prefer. You at least have to take on the task of talking, putting up with a little stress, explaining what you want, etc.

Re: permission vs. forgiveness: Once things start down that road, they can get ugly fast. Our association decided to start enforcement one year (long ago) by plowing under somebody's much-loved garden. It was an ugly, sad incident that not only alienated people, but the ill will also keeps people from getting involved -- and involvement is sorely needed.

People underestimate the importance of just socializing. If you and some other of you neighbors just threw some parties with various people invited -- possibly including some old folks and some charming kids -- it's possible that some of this opposition could soften quite quickly.
posted by amtho at 4:07 PM on February 7, 2015 [3 favorites]

Are you in the United States? If you are, then your HOA board is required to follow fair housing laws and may be violating the Fair Housing Act. I am mostly familiar with the Fair Housing Act in the context of rental units, but (brief) googling suggests HOA boards must also comply.

I am absolutely not a lawyer, but if the HOA board is selectively forbidding, denying, or blocking requests that have to do with children, then they may be discriminating against residents based on familial status. (That is, based on the presence of children 18 or under in the household.)

A little more information at the Department of Justice website on the Fair Housing Act and this article, which notes that:

"Familial status, race, religion, and other protected classes can't be used as a basis for making decisions about letting people rent their units, architectural changes, or things of that sort," says Drewes. "You can't make decisions about rights that everybody has based on those factors."

Obviously, I would recommend trying the other options suggested by others before getting a lawyer, but if all else fails it may be worth looking into.
posted by cimton at 6:21 PM on February 7, 2015 [3 favorites]

You say that the folks who live there who are under 50 don't have time for an HOA, but the current HOA doesn't have meetings, just selectively swats down rule-breakers which probably takes up a bit of time. If you find two or three other people and a bunch of allies, you can run to be on the HOA board and probably win. I can guarantee you that if you try to just meet quarterly, most issues will resolve without as much time as these "old timers" spend.

When I joined my old condo board, I asked in advance how much time it would take, monthly. I was told about sixteen hours a month, and I gulped but chose to do it anyway for the break in fees in exchange for service. I discovered that the reason it took so much time was because everyone was doing things really inefficiently. Bills were paid by money order, so someone had to go to the bank, wait in line, etc. Minutes were typed and copied at Kinko's. Vendor relations and proposals were done via phone or fax (!). The whole thing was being managed by 70-year-olds without computers. In a year, me and another new owner digitized records, got minutes sent via email, created a proposal system in Google docs for prospective vendors, and set up auto-billpay. Tasks took an hour a month, if that.
posted by juniperesque at 10:00 PM on February 7, 2015 [5 favorites]

Depending on where you are, you might be able to force the issue as far as elections and annual meetings are concerned by reporting them. In my case, that would be the "Office of Common Ownership Communities".

I will warn you, this is likely to suck and may result in retaliation. (In my case, it took over a year to have a piece of window trim replaced. And I had been on the board for a year and didn't run again because they did a ton of illegal things that I didn't want to potentially be dragged into.)
posted by sperose at 7:45 AM on February 8, 2015

Well, before you make any decisions on what to do, make sure you review the CCR (Covenants, Codes, and Restrictions). Why? The HOAs power to enforce is codified there. Not all HOAs have the same amount of power. You should have been given a copy, or you can request one. There is going to be information on how often the board is supposed to meet, and how elections are to be handled.

For example, I don't think this is typical, but my HOA has the power of first lien. That means any debts owed when the house is sold are paid first to the Association. Before the bank, or anyone else gets paid. So, if I were levied a fine by them and chose not to pay, they might take out a lien against my house, which would show up when selling the home, and have a negative effect on selling.

When we first moved in, Mr Sunny was on the board of our HOA. It was more than 16 hours a week, because he was in charge of overseeing the landscapers. That may not apply in your case, but be warned.

Good Luck!
posted by annsunny at 11:28 AM on February 8, 2015

If you're part of the group that makes these decisions (if I understand your update correctly), then is the problem that there aren't enough other people who agree with you on the committee to outvote the curmudgeons?

If four people on the committee vote "yea" on basketball hoops and three vote "nay," then unless you have specific rules about what kind of majority is required to pass motions, you can put up your hoop. For this reason, it makes more sense for someone who is not on the committee to put forward the request - that way you won't have to recuse yourself and your vote will "count."

Can you add more people to the committee? If not, run for board president and start holding meetings as required - then the board could make changes to the committee (number of members, term limits, etc.) that would limit the power of the curmudgeons.

Socializing is also not a bad idea, but I wouldn't rely on that.
posted by jeoc at 12:51 PM on February 8, 2015

Check the CCR. For our HOA, if they don't meet in a set period of time, it is considered disbanded.
posted by blue_wardrobe at 11:30 PM on February 8, 2015 [1 favorite]

What can your HOA legally do to you if you build your play structure and then refuse to take it down? My old HOA had no teeth at all. They would send threatening letters to people... and then, nothing. Because they had no authority to assess fines or anything else. All they could do was bitch. When I found this out (directly from a woman on the board) I pretty much did whatever the flurk I wanted with my home and landscaping, and just shredded all the many letters that arrived.
posted by mysterious_stranger at 2:53 AM on February 9, 2015

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