Selective Enforcement - Why's Everybody Always Picking On Me?
Many times when enforcement action is started against an owner in a community, the first response is “Why are you picking on me? Everybody else is/has [fill in the blank – painted their house without ARC approval; installed new windows without ARC approval; modified their landscaping; left their trash cans out, etc.]” Then the formal response is accompanied by a dozen pictures of other homes in the community that have the same, or similar, violations. Face it, everybody who receives the enforcement letter from their association feels like they are being singled out, because they know at least one other person who has done exactly what they are accused of doing, and that other person hasn’t been reprimanded. Or have they?
It is human nature to be defensive when accused of doing something wrong. It is also probably human nature in many cases to be assertive in response to an accusation. So what is an association to do, and how should it handle enforcement of covenant and rule violations?
One of the concerns we have when asked to pursue enforcement of a covenant or rule violation is whether, indeed, there as been selective enforcement. Most governing documents permit the association’s board of directors to adopt rules, and the Colorado Common Interest Ownership Act (CCIOA) expressly permits associations to adopt rules. Often times, the language in a declaration that gives the board the authority to adopt rules also comes with a requirement that they be enforced in a uniform manner. CCIOA doesn’t contain any such express requirement, but it is clear from Colorado court decisions that courts will not enforce covenants or rules when the board is acting in an arbitrary or capricious manner.
So how do you avoid doing this? First, if you’ve been reading our blog for any period of time, you know that CCIOA requires that every association adopt an enforcement policy (you do know that, right?). An enforcement policy is a good place to start when setting out the procedures and steps you are going to take when an alleged violation has occurred. The next step, surprisingly, is following that policy.
Make sure that you have procedures in place to address how violations are determined, and how they are addressed. Are you only going to respond to violations when they are reported? This is acceptable, and is what many municipal zoning departments do. Are you going to be more proactive and drive through the community once a week or month to spot violations? This is acceptable as well. Are you only going to view the homes from the street, or are you going to view them from open spaces looking into back yards? This is acceptable as well. But whatever you choose to do, make sure that you do it consistently, and then react consistently.
So how do you react? Do you send violation notices to all owners who appear to be in violation? Or just those that the association’s President doesn’t like? What about that provision in the governing documents that requires “uniform” enforcement? What does that mean? Does it mean that the same or similar violations receive the same or similar enforcement? When the owners receive their notices of violation, and respond with the pictures of all of the other violations in the neighborhood, do you cross check your files to see if enforcement action is being taken against those owners, or if there is some reason why it should not be taken? If it is not taken, can you provide a valid reason why not?
Of course, you know that you cannot just impose fines without providing notice to the owner and an opportunity for a hearing. CCIOA also requires that your enforcement policy set out your fine schedule. However, as noted above CCIOA doesn’t say anything about enforcement being “uniform.” But, Colorado courts are going to insist on enforcement being fair. Fairness does not necessarily mean “uniform.” Rather, it requires the board to exercise its judgment in a way that is not arbitrary or capricious. And, beware - if there is too much disparity without enough uniformity, it looks like arbitrary.
While implementing proper policies and procedures will not eliminate an owner’s feeling of being singled out, it will go a long way toward making sure that your enforcement actions will be valid.