How To Handle a Selective Enforcement Dispute

What is Selective Enforcement?

Selective enforcement is a situation where an HOA enforces its rules and regulations against one homeowner while allowing other homeowners to violate the same rules without consequence. For instance, a homeowner might receive notices for having overgrown shrubs or a peeling wall, while neighbors with similar issues are left unbothered. This unequal application of rules can be driven by personal biases or vendettas within the HOA board, creating a hostile living environment for the targeted homeowner.

Legal Implications of Selective Enforcement

Selective enforcement often stems from a board member’s personal dislike for a homeowner, leading to a breach of fiduciary duty. In California, HOA governing documents, reinforced by the Davis-Stirling Act, mandate the equal application of rules and regulations. Any deviation from this principle constitutes a breach, opening the door to legal action. A board’s failure to apply rules equally not only violates the governing documents but also undermines the HOA’s credibility and authority.

Steps to Take When Facing Selective Enforcement

Step 1: Document Everything - The first and most crucial step is to document all interactions and incidents. Keep emails, letters, and notices from the HOA. Take photographs of the alleged violations and comparable conditions in your neighbors' properties. This evidence will be vital in demonstrating the unequal treatment.

Step 2: Review Your Governing Documents - Thoroughly review your HOA’s CC&Rs (Covenants, Conditions, and Restrictions) and bylaws. Understanding these documents is foundational to identifying breaches and understanding your rights as a homeowner. Familiarize yourself with the rules regarding enforcement to better articulate your case.

Step 3: Request Records from the HOA - Homeowners are entitled to certain documentation under California law (Civil Code Section 5200). Submit a formal request for records that may show how rules have been enforced across the community. This could include violation notices, minutes from board meetings, and records of decisions related to enforcement actions.

Step 4: Attempt Informal Resolution - Before escalating the matter legally, try to resolve the issue informally. Request an Informal Dispute Resolution (IDR) meeting with the board. Clearly state your case and present your evidence. This step not only demonstrates your willingness to resolve the issue amicably but also helps in documenting the board’s response.

Step 5: Seek Legal Advice - If informal resolution fails, it’s time to consult with an experienced HOA attorney. At LS Carlson Law, we offer consultations to help you understand your legal options. Bring all your documentation to the meeting. The more organized and detailed your evidence, the more efficiently we can assess your case and recommend the next steps.

Step 6: File a Formal Complaint - If necessary, your attorney can help you file a formal complaint against the HOA. This might involve pursuing legal action for breaches of fiduciary duty, violations of the governing documents, and potential discrimination claims if applicable. The goal is to stop the selective enforcement and ensure fair treatment for all homeowners.

Why Proper Documentation Matters

Proper documentation is the backbone of any selective enforcement case. Detailed records, photographs, and correspondence can significantly strengthen your position. It shows a clear pattern of behavior by the HOA and provides tangible evidence of unequal treatment. A well-documented case not only aids in informal negotiations but also serves as compelling evidence if the matter escalates to legal proceedings.

Conclusion

Selective enforcement by HOAs can create a stressful and unfair living environment for homeowners. By understanding the legal implications and following these essential steps—documenting everything, reviewing your governing documents, requesting records, attempting informal resolution, seeking legal advice, and potentially filing a formal complaint—you can protect your rights and ensure fair treatment.

At LS Carlson Law, we are dedicated to helping homeowners navigate these complex issues. Our experienced attorneys are here to provide the guidance and representation you need. If you’re experiencing selective enforcement, contact us today for a consultation. Together, we can work towards resolving the issue and restoring harmony in your community.

Bad HOA Podcast Episode Transcript on Selective Enforcement

HOA Attorney & Podcast Host, Luke Carlson, Esq.

All right, Luke Carlson of Ellis Carlson Law, welcome back to the show. We're thrilled that you're watching. I also have to my right, Marty. Hello.

Podcast Producer & Contributor, Marty Vasquez

Welcome. Thanks.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

And Jenny, welcome back.

Podcast Contributor, Jenny Carlson

Hi.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

So I'm a lawyer of Ellis Carlson Law, and as we've been doing in this series, we're really identifying areas of concern or things that are creating absolute nightmares for homeowners. Last week, we did failure to repair, which is a huge topic. I thought that was very helpful.

Podcast Contributor, Jenny Carlson

I think it was.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yeah, it comes up over and over again. Now, we have another topic, which I think causes an equal amount of nightmares for owners, which is selective enforcement. So we are going to dive into that today and hopefully, the viewers will get some good insight into this variation of yet another nightmare.

Podcast Contributor, Jenny Carlson

What is selective enforcement?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Selective enforcement is one of those areas where we see it materialize in a number of different ways. You're a homeowner, living your life, minding your business, and all of a sudden, you're getting notices. Maybe it's because they don't like your shrubs or the color of your house. Your wall is peeling.

Podcast Contributor, Jenny Carlson

Your wall is peeling, yeah.

Podcast Producer & Contributor, Marty Vasquez

That was very specific. Do you care to share?

Podcast Contributor, Jenny Carlson

We'll go into that another time.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yeah, we'll put it aside for now. But then you look at your neighbors and see that they have the same outstanding issue. Their wall is peeling, or their shrubs are all out of whack. You talk to the neighbor and they say, "Yeah, we're not getting any violation notices." You come to realize that you're the only person being targeted. That is selective enforcement, where you're being targeted to the exclusion of others. Your other neighbors, the other owners, aren't under the microscope, but you find yourself with a target on your back.

Podcast Contributor, Jenny Carlson

Yeah.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

So that is selective enforcement in a nutshell. What do we have next?

Podcast Producer & Contributor, Marty Vasquez

What are some of the legal implications of selective enforcement? I think we did a decent job explaining that it’s really about the lack of consistency and targeting specific individuals.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

When you're looking at selective enforcement, it gets interesting because often there’s a motive behind it. Someone on the board or the board in general doesn’t like you. Going back to our personality types, you have a tyrant or a meddler. It’s rarely an incompetent board member; it's most likely vindictive in nature. From a legal perspective, several things happen. First and foremost, in California, you have the governing documents. Most of them are very clear that they say there should be an equal application of the rules and regulations. When one person is targeted and no one else is, there’s almost an immediate breach of the CC&Rs because there’s unequal application of those rules and regulations.

Podcast Producer & Contributor, Marty Vasquez

And that's in the Davis-Stirling Act, that it has to be equal application?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

The Davis-Stirling Act discusses it, but you’ll often find it in the CC&Rs themselves. There’s a provision that says these rules and regulations must be applied equally to all owners.

Podcast Contributor, Jenny Carlson

So an example could be three people have a peeling wall and only one person gets a notice of violation?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Exactly. Another caveat is that the peeling wall is open and obvious.

Podcast Contributor, Jenny Carlson

Correct, but you may share it with a neighbor who also has a peeling wall.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

You may share that wall with a neighbor and their wall is also peeling. It’s something that’s open and obvious in the community. The board should know about it if they just walk around. If they target only you, it becomes a breach of governing documents. Another thing to look at in California is the board’s fiduciary obligation. It's a heightened standard of care that the board owes the homeowner.

Podcast Producer & Contributor, Marty Vasquez

So in most situations, do they remove the thought of fiduciary obligation? Are they still in neighbor mode and it irritates them, so they use their power to be tyrannical or meddlesome?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Maybe a meddler has fixated on you and likes to push your buttons through enforcement actions. They call you to a hearing, send you fines and violation notices. Sometimes, they weaponize the lawyer that works for the association.

Podcast Producer & Contributor, Marty Vasquez

That seems very aggressive. How would they do that?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

The association has in-house counsel or corporate counsel. Good HOA attorneys help manage compliance with the CC&Rs and the Davis-Stirling Act. But sometimes, association attorneys are hired guns. If the meddler tells the attorney to hit Susie Q with another violation notice, the attorney might do it without due diligence.

Podcast Contributor, Jenny Carlson

Just because they don't like her.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

They might not even say that, but the association attorney just does it. They’re getting their hourly fee or they’ve consumed the Kool-Aid and are best friends with the tyrant. That’s the weaponization of an attorney. It’s dramatic but accurate. Legally, we’re looking at breaches of fiduciary duty, governing documents, potential violations of the Davis-Stirling Act, and articulating this form of malfeasance. The purpose of the show is to educate viewers experiencing this so they can articulate what's happening to them legally.

Podcast Contributor, Jenny Carlson

And also know the proper steps to take.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yes, we’ll get to that. Elevating your vocabulary is a step in the right direction.

Podcast Producer & Contributor, Marty Vasquez

Using this vocabulary makes people pay attention.

Podcast Contributor, Jenny Carlson

They’re buzzwords. Mentioning the Davis-Stirling Act will make ears perk up.

Podcast Producer & Contributor, Marty Vasquez

They’ll see you’re not messing around anymore.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Right, you become a sophisticated owner at the table. Instead of saying, "That’s rude, you guys are obnoxious," you say, "This is a potential breach of fiduciary duty, running afoul of the Davis-Stirling Act." Elevated vocabulary carries more meaning and typically gets more traction.

Podcast Contributor, Jenny Carlson

This is a good life lesson in general. Become knowledgeable, right?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

True, yeah. Unfortunately, as an owner, you’re very emotional. Rightfully so.

Podcast Contributor, Jenny Carlson

Yes, but you have to educate yourself.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

If you can put the emotion aside and look at it clinically, that’s where you get traction.

Podcast Producer & Contributor, Marty Vasquez

It has a lot more teeth.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

It does, yeah.

Podcast Contributor, Jenny Carlson

And if you're familiar with your CC&Rs.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Correct, which I encourage everyone to be.

Podcast Contributor, Jenny Carlson

Absolutely.

Podcast Producer & Contributor, Marty Vasquez

Which is a good tease for our next topic. Let’s go through the legal implications we touched on briefly: breach of fiduciary duty, discrimination claims, violation of governing documents, equitable relief, etc.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Discrimination claims are interesting. Discrimination law is its own practice area. In the US, there are protected classes. If you're discriminated against based on a protected class, it’s a different ball of wax and needs a specialist. We handle selective enforcement but bring in a specialist for discrimination claims.

Podcast Producer & Contributor, Marty Vasquez

It’s part of the law they could be breaking, but you typically don’t handle it.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Correct, we stay in our lane.

Podcast Producer & Contributor, Marty Vasquez

We’ve talked about violation of governing documents. The HOA not following governing documents is usually glaring.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yes, it’s usually obvious. Talk to me about equitable relief.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

When you look at different forms of relief, courts can provide monetary relief or equitable relief. Equitable relief is non-monetary, like ordering the association to do or not do something. For example, if the HOA isn't maintaining a common area, the court can order them to do so. It’s specific performance.

Podcast Producer & Contributor, Marty Vasquez

I assume selective enforcement often seeks equitable relief.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yes, you're typically looking to cease misconduct. The end game is stopping the malfeasance.

Podcast Producer & Contributor, Marty Vasquez

Monetary situations arise when they rack up fees or fines.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Attorney’s fees, etc. Overall, you're looking to curb malfeasance targeting you.

Podcast Producer & Contributor, Marty Vasquez

Talk to me about loss of HOA credibility and authority.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

When a board engages in unequal application, it discredits the HOA. If the community gets wind of it, it undermines the association’s credibility.

Podcast Contributor, Jenny Carlson

People in associations don't have a degree in HOA. These are volunteers, so this might happen often.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yes, these are volunteers with no credential check. Even intelligent individuals can operate out of self-bias and self-interest. PhDs can still violate CC&Rs and the Davis-Stirling Act. Conversely, less educated individuals can perform well on the board. Education isn’t an indicator of performance.

Podcast Producer & Contributor, Marty Vasquez

Sure.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

But that’s not what hits my desk. I get the dumpster fires. Loss of credibility and authority can spiral, leading to a lawless environment.

Podcast Contributor, Jenny Carlson

I like this. All right, resolution. This is a good topic. As a homeowner, you perceive selective enforcement. Document everything. It’s one thing to testify; it's another to have emails and evidence.

Podcast Contributor, Jenny Carlson

As a non-lawyer, I think the best reminder is to have everything in a file. Document, save everything, and keep a paper trail.

Podcast Producer & Contributor, Marty Vasquez

Pictures are crucial. If your neighbor has the same issue, take pictures and mark the date.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Or a more elevated approach: send an email to your neighbor confirming they haven’t received adverse actions from the board.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Another area is the architectural control committee. If your application for a gazebo or pool is denied repeatedly while others get approved, that’s selective enforcement. Document it. Knowing your governing documents is owning in an association 101. Understand them even if they’re boring.

Podcast Contributor, Jenny Carlson

Understand documents. Educate yourself.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Education.

Podcast Producer & Contributor, Marty Vasquez

Step one, collect the evidence. Step two, review your CC&Rs and bylaws. Step three, request records if necessary.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Make a document request. You’re entitled to certain documentation as an owner.

Podcast Contributor, Jenny Carlson

If you want to put in a pool and the neighbor was able to, could you request the neighbor’s documentation?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

It depends. Some communities will disclose information. Some won’t, especially if there’s a tyrant on the board.

Podcast Producer & Contributor, Marty Vasquez

Does California law specify that you are entitled to some documentation?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yes, under 5200 of the civil code. You can cherry-pick documents you’re entitled to. It’s a powerful tool, but often independently gathered documents are powerful too. Don’t go on a fishing expedition.

Podcast Producer & Contributor, Marty Vasquez

It would be nice to know if Bob down the street got fines too.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Sometimes the best way is to ask Bob.

Podcast Contributor, Jenny Carlson

If you’re a natural meddler, you like to know.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

That’s a meddler homeowner, not a board member.

Podcast Producer & Contributor, Marty Vasquez

Put on your meddler cap as you solve this.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

At some point, you'll sit down and realize you have enough evidence. If you can work it out with the association without a lawyer, that's a win.

Podcast Producer & Contributor, Marty Vasquez

Which is the next step, informal contact to solve this.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

California offers informal dispute resolution (IDR). Demand IDR with the board. No magic language needed, but the verbiage helps. Request informal dispute resolution, state your issue, and ask for meeting times. In an ideal situation, the board rectifies it. With a bad board, IDR can be frustrating. But even if you know it will fail, it’s good for documentation.

Podcast Contributor, Jenny Carlson

Do it for documentation purposes.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Go in good faith. If you have a horrible encounter, document it. Follow up with an email to confirm what happened.

Podcast Producer & Contributor, Marty Vasquez

Are they required to keep minutes or record these meetings?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

There’s a requirement for certain meetings, but typically not for IDR. Assume they won’t take notes and put the onus on yourself to document.

Podcast Producer & Contributor, Marty Vasquez

Could you record the meeting?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

If you ask and they agree, yes. But don’t record without consent. Attempting IDR may not be a bad idea, even if you think it will fail. But if you have enough evidence, you might skip it and go to the next step, more aggressive with the board.

Podcast Producer & Contributor, Marty Vasquez

Which is hiring a lawyer.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Typically, you meet with a lawyer first. Some offer free consultations, others charge. Bring all your documentation. The better organized you are, the easier it is for the lawyer.

Podcast Contributor, Jenny Carlson

So a dream client is one with well-documented evidence, taking the emotion out of it.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yes, though I assume clients will be emotional, rightfully so. It's their home. You calibrate the emotion because it’s relevant. The human element is important when presenting the story to a mediator or judge.

Podcast Producer & Contributor, Marty Vasquez

I can’t imagine this starting last week. It’s probably been years.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yes, and you almost become a necessary evil. They don’t want to meet with you, but you’re needed. Empathy is critical. The emotion is relevant to getting the story out.

Podcast Contributor, Jenny Carlson

How much easier is it for you when a client comes with great documentation?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

It’s seamless and cost-saving. A binder cuts down on work. We can organize banker boxes of disorganized information, but it takes more time.

Podcast Producer & Contributor, Marty Vasquez

It could take hours to go through that.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Some people don’t want to deal with it and just hand over everything. We handle it, but it takes more time.

Podcast Contributor, Jenny Carlson

Me with taxes.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Most people with taxes. You give it to your CPA and say, "Figure it out."

Podcast Producer & Contributor, Marty Vasquez

So to recap: document the issue, review your CC&Rs, request records if you can, take an informal approach, attempt IDR, and if all fails, talk to a lawyer about next steps.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Exactly.

Podcast Contributor, Jenny Carlson

My favorite part. The Reddit rapid fire. Here we go. It's kind of like a bar exam on air.

Podcast Contributor, Jenny Carlson

I receive friendly reminders and one violation. I asked for pictures, but they say they don’t take pictures. I don’t understand how they are so sure. My next-door neighbor is the president of the HOA and nitpicks my home. I got a letter regarding weeds in flower beds after I remulched my entire yard. I was floored. They couldn’t provide pictures. I got a violation for my eaves not being power-washed. No picture provided. I think it’s the neighbor targeting me because we are young and have kids and dogs.

Podcast Producer & Contributor, Marty Vasquez

President lives next door and seems to be targeting happy families with dogs. Does this happen often?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yes, I see this a lot. One of the first questions I ask is, "Who’s your neighbor? Are they on the board?" 70% of the time, someone on the board is involved.

Podcast Producer & Contributor, Marty Vasquez

They see your stuff regularly.

Podcast Contributor, Jenny Carlson

They have to look at it all day long out their bathroom window.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

They care about what’s around their house. They leverage their position on the board to beautify their perimeter, ignoring the rest of the community. That becomes selective enforcement. This person should go around the neighborhood, see what’s happening at other homes. If others are in the same state of disrepair but only they get violation notices, that’s selective enforcement. If other neighbors are also getting violation notices, it’s different.

Podcast Contributor, Jenny Carlson

Like my eaves are 50% power-washed, but others’ eaves are worse.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Correct. If uncomfortable going door-to-door, force an IDR and put the board to task. Ask if other neighbors are getting violation notices and provide pictures.

Podcast Producer & Contributor, Marty Vasquez

Do HOAs regularly have people walk around inspecting?

Podcast Contributor, Jenny Carlson

Oh my gosh, yes. My mom’s condominium complex in Mission Viejo has someone with a clipboard every time I go there.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Is she on the board?

Podcast Contributor, Jenny Carlson

100%.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Some associations are very aggressive, with people in golf carts inspecting homes. Drones, golf carts, Segways - they use various methods.

Podcast Contributor, Jenny Carlson

That also sounds very personal.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

It’s not necessarily a bad thing. It can solve selective enforcement issues.

Podcast Producer & Contributor, Marty Vasquez

Correct. When it’s selective enforcement, it’s typically just the board president targeting specific homes.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yes, if someone is leveraging their board position to target their neighbors, that’s selective enforcement. This person needs to document other homes’ conditions and see if others are getting violation notices. That’s how you address it.

Podcast Contributor, Jenny Carlson

What’s our next episode?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Neighbor disputes. We’ll discuss enforcing against a neighbor violating the CC&Rs and the association’s liability in that dynamic.

Podcast Producer & Contributor, Marty Vasquez

These are always fun.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yeah, well, Marty, thank you again for being on the show.

Podcast Producer & Contributor, Marty Vasquez

Thanks for having me.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Excellent questions. And Jenny, thank you. Wonderful questions as always. And guys, thank you so much for watching. If you love the show, please subscribe. Press the button.

Podcast Contributor, Jenny Carlson

My 12-year-old daughter says, "Press the button. Give us a thumbs up."

HOA Attorney & Podcast Host, Luke Carlson, Esq.

All right, thank you.