"selective enforcement"

Started by JackieB • 62 replies • 10905 views

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JackieB (California)
Posts: 198

Posted:

I need to vent. Most of us have had this exprience BUT..........Our community of
140 homes, very close together, and 20 years old.....had a HOA mtg last nite.
At the MARCH mtg. a fairly new couple came with a "fix-it" notice they had received from PM because they painted their front fence/gate a dark, dark brown color. "Vista Tan" (light tan has been the standard, but over the years and through many BOD's, ARC's the front fences(HO responsibility) have been rebuilt and
repainted. Some are white, some vista tan, some faded vista tan, but all mellow
harmonious colors. (only white or very light tan). It is believed that the original
color was Vista Tan and this has simply become a "legend" because no one can find the color documented anywhere. CCR's say fence can be painted the existing color
without ARC approval. In this case the fence was white, now deep chocolate brown,
and no ARC appl. submitted. We/BOD in March asked this couple to canvas the neighborhood and to use our website (thank you Doug) to see if there was support
"for change to include dark colors for front fences/gates." And no fines would be
generated until they came back (last nite) to present their findings. Their support was one letter from their neighbor who likes the dk. brown oolor. No one,
including us, can find the Vista Tan or white recorded anywhere. Meanwhile ARC
met last week, aware of the above, and decided to submit a request to BOD to allow
a white or Vista Tan choice for HO. The request from ARC was in a "holding pattern"
to see if support was generated and the majority of members wanted a change, then so be it by the ARC. No support came,(except one letter) and the couple kept insisting we were picking on them, being selective, etc. because they took 50 photos of diff. colors and styles within the community. None were dark colors, all
pale white, light tan....and we allowed "vinyl fences" light tan...which "are different".....and exquisite looking with same horizontal/vertical lines.
Well you get the point. I served Pellagrino mineral water and wanted to wack each
of them along side the head with that green bottle. I still do.........which is why I am submitting this for comments.
Jackie

SusanW1 (Michigan)
Posts: 5,202

Posted:

This is what happens when the Board does not ensure that bylaws, rules, policies, reserve funds - in fact anything that is under their jursidiction - is reviews periodically, and notices kept up to date to the members.

This should have been a no-brainer: there should be no confusion as to what color (current, available, up-to-date- esthetically, brand name and where to purchase paint)are "official".

Sorry, the Board deserves a rap on the hands.

MaryA1 (Arizona)
Posts: 7,043

Posted:

I agree with Susan. And, I also think the board was remiss in giving the member the job of canvassing the community to find out if a change in paint colors is in order. That is a function of the board or the A/C committee! I'm sorry, but it sure sounds to me like the board is afraid to do their job.

BobT2 (California)
Posts: 43

Posted:

I think it comes down to the following; living in a HOA and being a board member means all or none. We all know what we buy into when we chose to live in an HOA. I think by not enforcing the ccrs, rules, ect. 100%, the board opens themselves up to problems. If boards, like mine, did enforce every rule on everyone There would be no use for websites like this or money hungry lawyers.

Bob

JackieB (California)
Posts: 198

Posted:

I am sure many will run to their ARC rules and see if specific paint color is listed. From the sounds of the responses great assumptions were made and that's
ok. (untrue but no need to defend.)I appreciate the time and sincerity with each comment.
Jackie

DonnaS (Tennessee)
Posts: 5,671

Posted:

Jackie,
So basically you feel that there is no desire within the community to set a new allowance for different paint colors? Without seeing your community, it is difficult to know if a choice of 1 or 2 (tan or white) colors is nescessary to continue the continuity of the original design. But, now you have someone who wants a change and that may not be a bad thing. They did ask for approval and did not get an answer other than scope the neighborhood and see. They did what they were told to do so I would not come down hard on them.

What you really need is for the Board to get the ARC standards down in writting, exactly what you are required to have according to whatever old docs that you can find. Why should it be a guessing game for someone who wants to keep up their property and cannot get a straight answer from the ARC.

I posted on another thread, the exact wording that the State of Florida enacted in 2007 for ARC Statutes. Now, all ARC guidelines MUST be spelled out in the Association Documents, otherwise any resident can paint or change whatever they want without approval from the ARC. Example, "no house colors, other than earth tones". Well, some guy went to very bright Coral, which made all of the pale houses around him look lost and sickly. Coral IS an earth tone, so HA HA, he showed them. The ARC would never have pased that color but he has the right to do it because the ARC guideline should have said, earth tone in a pastel tone.

JackieB (California)
Posts: 198

Posted:

I should have not posted yesterday while I was at the height of frustration.
This couple didn't follow any guidelines. They didn't submit an ARC appl.; they
didn't inquire about color even though the entire community is pale white/tan.
We are zero lot lines so we are "close" as stated. ?? 8-10 feet apart. The ARC
guidelines state paint exisiting color, of which their's was white. As a BOD we
are extremely open to change if it is supported by the community. This was the first challenge or even inquiry about paint color, which was "after the fact" they painted.I have attended HOA mtg for 5 years, been on each of the committees,
and a BOD member for one year. Yes, we were remiss in not being aware that the color wasn't doucumented. Our books for house colors, trims, etc are very current and available to homeowner's. Why wasn't fence/gate color in the book? There were samples but no actual documentation. We agreed with the owner that a "legend" is moot, but let's get it right now. The ARC met and decided to propose white/tan officially. I personally disagree that the BOD can't ask HO's to F/U with support for serious change considerations. We have extended the time frame another 30 days to see this is a true issue or just one person's anger. Simple as that.
It was posted by the HO on our website and received only one response (52 members on website) which favored the exisiting tan/white....no dark colors. If every
violation is cause to demand the BOD take surveys/gather opinions, etc when it
takes 2-3 months to make quorum for elections........who would run for BOD; could
you even hold a real job at the same time?
Thanks again.....we can agree to disagree.
Jackie

MicheleD (Kentucky)
Posts: 4,491

Posted:

Whether you had the colors listed or not, you do have this to all back on:

"The ARC guidelines state paint exisiting color, of which their's was white"

They did not do even that minimum, so I see no problem with enforcing to at least make them follow THIS requirement.

Then, if someone, or the ARC Committee wants to get more specific about what other colors can be used, go for it.

But at a minimum the fence should at least be made "white."

Just my opinion.

JackieB (California)
Posts: 198

Posted:

that's how I read it and thus became puzzled with some of the responses. How was
that "selective enforcement?" Appreciate all the comments.
Jackie

MicheleD (Kentucky)
Posts: 4,491

Posted:

I don't know that it WAS selective enforcement.

I do know this, however, that "battle cry" is one of the first that people toss into the air.

I would like to have it set to the same voice/tone/sound as Gomer Pyle's "Citizens' Arrest! Citizens' Arrest!"

Just because someone screams "selective enforcement," doesn't mean it exists. It doesn't even mean they really even truly understand what "selective enforcement" means.

Good luck.

They should at least paint the fence back to white.

Then go from there.

BobT2 (California)
Posts: 43

Posted:

MicheleD

Can someone please explain just what or where we get the meaning of Selective Enfocement? Thanks

JackieB (California)
Posts: 198

Posted:

In the context that the couple was using, they meant we/BOD were simply picking on
them......choosing only to hold them accountable. We were selecting(biased) on not accepting their dk. brown fence color when the entire community has very light
fences: white or lite tan. We weren't but that is their posture on the issue.

BradP (Kansas)
Posts: 2,640

Posted:

Jackie:

To play devil's advocate for a little bit on this one...Have all the other homeowners past and present who have a fence/gate color different than the original submitted an ARC request and had it approved? I can see the couples argument because it seems to me that there are several different colors in your neighborhood now, did they all get approval to change or was it just overlooked because the board felt it was harmonious?

You asked them to find support for the dark brown color, they came back with a letter from a neighbor, did you define to them how much support they needed? Did they need 1 home, 25% of homes, 50% of homes?

My point is it seems there is a pattern of allowing different styles and colors, now if they are all documented with approved requests then that is one matter, but if they aren't then I think this homeowner has a legit beef.

Now, on the flip side, I agree that the homeowner didn't follow procedure and should be subjected to the penalties. The decision your HOA has to make is, is the new color acceptable to the neighborhood or are you going to push the issue to make them repaint?

For the person who asked what the definition of selective enforcement is, it is enforcing certain restrictions on one or more homes, but allowing those same infractions to exist at one or more homes without enforcing them.

MicheleD (Kentucky)
Posts: 4,491

Posted:

Brad, I disagree with this statement: "The decision your HOA has to make is, is the new color acceptable to the neighborhood or are you going to push the issue to make them repaint? "

The decision the HOA HAS to make is whether to make them repaint it the color it was prior to their re-coloring it.

After that the HOA MAY take up the issue of drafting formal in-writing "allowable" colors, but even then, it would seem to me, since the CC&Rs state it has to be painted the previous color, they would then have to make an amendment that said something like: "All fencing requiring repainting must be painted either the previous color OR one of the colors from the pre-approved list residing with the ARCH Committee."

That way, the Arch Comm can "change" the accepted colors -- or evolve them might be a better choice of words -- over time as popular colors change or evolve over time.

This will allow for the grandfathering in of colors that might not be on the "list" currently, but that can be maintained by the resident if the resident prefers that color over the "new" ones.

BradP (Kansas)
Posts: 2,640

Posted:

Michele:

I disagree with you, if you make them repaint it the original color and don't let them paint it white or one of the other colors in the neighborhood then you are definitely practicing selective enforcement. I may be wrong but I believe their documents said you can repaint it the same color without permission, I don't believe it said it had to be the orginal color. But, if it says what you say it does, that they have to be the original color then this couple has a legitimate beef. Their committee needs to decide if it is an acceptable color.

TracyT (Maryland)
Posts: 228

Posted:

Jackie said in her OP "CCR's say fence can be painted the existing color
without ARC approval. In this case the fence was white, now deep chocolate brown, and no ARC appl. submitted."

She also told us that they could not trace back the origins of the original color schemes. So "the community standards" are what they are (e.g. the rule is whites and light tans).

The HOs did not apply to the ARC to change the color. At the appeal the BoD said we only have whites and light tans. The BoD did give an opportunity to raise support but either the HOs didn't try very hard or it isn't there. Why is there still debate?

If the HOs still want to pursue color change to "the community standards" (e.g. rule) they could request the BoD put it to a vote of the assoc.

Provided a color change is allowable per the CCR, apply the voting requirement to change a "rule". The BoD could provide an allowance in time required to fix the color until after the vote. Then you will know whether to change the rules or enforce them as they are.

Good luck.
Tracy

BradP (Kansas)
Posts: 2,640

Posted:

Tracy:

One thing to remember in regards to the rule, is it reasonable? Is it reasonable to deny these homeowners the opportunity to paint their fence chocolate brown when there are multiple color schemes in the neighborhood already?

I don't disagree that they needed to ask permission either, they should face the penalties for that.

TracyT (Maryland)
Posts: 228

Posted:

Thanks Brad. I do agree about the need to be "reasonable". But for the past 20 yrs. Jackie's community's fences have all been whites and light tans thus it has become the standard and until now has not been a issue. Right?

The BoD has already given the HOs a chance to drum up support for dark colors AND sponsored a survey on their web site (1 response against). Now, neighbor approval might be one thing but IMO 1 letter does not constitute community support. Jackie said her BoD was looking for a majority to support, but that didn't happen. So why wouldn't the BoD continue to enforce the "standard"?

I offered one other option that if the BoD is concerned about dark colors, they could AGAIN assist the HOs by initiating a vote.

Tracy

BradP (Kansas)
Posts: 2,640

Posted:

Tracy:

I don't disagree with what you said and agree one letter isn't support. But, it appears over the years, unless I am wrong, that the board and ARC have let light colors slide and have adopted a light color is ok philosophy. I don't agree with that practice and then all of a sudden trying to punish someone when they go outside of the unwritten light is ok rule.

TracyT (Maryland)
Posts: 228

Posted:

Hi Brad,

Once again your making really good points. Regardless of how the community standards came about, they are. Jackie's board is seeking community acceptance of dark colors for fences. How else would you recommend they over come that?

Tracy

JoanneL1 (Florida)
Posts: 3

Posted:

As a suggestion, our ARC presented to the Board and we approved a palette of approved colors for walls, trim, and driveways. All homeowners were and new ones are made aware of this. When a homeowner wants to paint, he needs to submit an ARC form, which is part of our Covenants, indicating the color he wants to use. This can help avoid situations like you are experiencing. Good luck.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Joanne,
The new Statutes governing ARC rules was passed in 2007 and your Board has done it exactly according to the books. "This is your pallette to choose from and nothing else is allowed" Good for you for doing it the right way because it saves all future problems for the ARC. Good Job!

MicheleD (Kentucky)
Posts: 4,491

Posted:

Brad asked: "Is it reasonable to deny these homeowners the opportunity to paint their fence chocolate brown when there are multiple color schemes in the neighborhood already?"

Yes.

Using the term "multiple color schemes" is a tad disingenuous,however, since the "multiple color" schemes have all fallen within a LIGHT hue.

So, yes, it is perfectly reasonable to deny a homeowner the "opportunity" to paint a color outside of the accepted "hues."

In the interest of full disclosure, I'm not a big fan of denying someone the ability to paint or stain their fences in any color they choose, as long as it is all one color and not a mish-mash.

But, the first issue is it is NOT necessarily "selective enforcement" to make them return it to the previous color, since that is exactly what the CC&Rs call for. We have no idea that the other colors, or shades, or hues, or whatever one wants to call them, over the years have been out of compliance with the CC&Rs, therefore to just assume that this is the only one that is being made to paint it the previous color is not exactly within our ability to determine.

BobT2 (California)
Posts: 43

Posted:

If our CCRs say motorhomes, boats,inoperable vehicles and trucks can't park in the drives and only one person is getting letters, fines ect. is that an example of selective enforcement or not? That is what what I now have $900.00 in fines . A board member did tell me that the rest of the board says my truck is different. I say a truck is a truck. So yes, I may be in violation for parking my truck in the drive but why should I move mine when I am the only person being violated. Sounds crazy but it is true I have it in writing from a board member and have seen the proof. So would I win in court or how do I make them enforce equally? It just seems it is impossible to fight a HOA board without paying a ton of money. Any suggestions?

MicheleD (Kentucky)
Posts: 4,491

Posted:

Quote:

Posted By BobT2 on 04/19/2008 4:45 PM
If our CCRs say motorhomes, boats,inoperable vehicles and trucks can't park in the drives and only one person is getting letters, fines ect. is that an example of selective enforcement or not? That is what what I now have $900.00 in fines . A board member did tell me that the rest of the board says my truck is different. I say a truck is a truck. So yes, I may be in violation for parking my truck in the drive but why should I move mine when I am the only person being violated. Sounds crazy but it is true I have it in writing from a board member and have seen the proof. So would I win in court or how do I make them enforce equally? It just seems it is impossible to fight a HOA board without paying a ton of money. Any suggestions?

You should move your truck because it is in violation. (IF it is in violation.)

What other people may or may not do when they are in violation doesn't make any difference.

I don't let my teenager get away with that philosophy, either, "Bobby speeds in his car and his parents don't ground him. . ."

Also, we hear this all the time: "So-and-so is doing the same thing and not getting letters."

Guess what? So-and-so IS getting letters, and he's just telling you a fib if he says he isn't.

I actually had a resident say to me, "Bob wouldn't lie to me about something like that."

Um. Okay, then the letters that are in his file are just there to keep it from falling over, right?

But, be that as it may, if you really feel you are the "victim" of "selective enforcement," then the proper way to address is not through disregarding the notices and/or fines, but by calling the HOA board's bluff.

Get an attorney and fight back. If it is selective enforcement, sometimes just a letter from an attorney will get them to back down, IF they have no way of backing up their consistent enforcement.

But be prepared, they may well have an excellent track record of proper notification and enforcement against the CC&Rs. But if you want to take that gamble, if they truly are inconsistent and capricious, then take that next step.

We have had several homeowners have their attorney write us "selective enforcement" letters. Which is fine with us, because then all we have to do is provide our tracking list of all the complaints received and all of the action taken against those complaints.

TracyT (Maryland)
Posts: 228

Posted:

And now back to our regularly scheduled program . . .

KarenS11 (Florida)
Posts: 148

Posted:

Is there a paper trail of others obtaining ARC approval for painting their fences and gates different colors from the original color? If you have consistently considered and approved HO's requests to change an existing color, then it appears that they have not gotten that same approval and can be denied. If the board turned a blind eye on others who have changed their color because it wasn't objectionable to the board, then it does seem to be selective. The ARC approval process can't be mandated only when the request is a deviation from what is considered the norm. But if you have consistently mandated a formal ARC request and these folks tried to obtain approval after-the -fact and it was not approved, IMO, that's another story.

Whatever happens in this case, I say call a meeting, select colors and vote on them, then there can be no misunderstanding.

And guess what I am going to bring up at our next meeting because of your post?!

SueW1 (Texas)
Posts: 26

Posted:

Painting a fence a lightish color of one hue or another is not specific. And if other homeowners never got approval........you only single one home owner out NOT because he never got approval BUT because he painted his fence brown.

You cannot fine him without fining the other homeowners who did not get approval either. If you do, this is indeed selective enforcement!

MicheleD (Kentucky)
Posts: 4,491

Posted:

We don't know what they did or did not do with the others.

We do know that a chocolate brown isn't even remotely close to even a lighter "hue" of white.

If the CC&Rs say that repainting the fence with the same color does not require ARC approval, and a resident repaints with a 180-degree opposite color without approval, then most certainly the board can enforce against it.

And my hands as a board member are not tied because a previous board may or may not have enforced in earlier incarnations.

We've gone down this road before. If a previous board had not enforced against something, it doesn't always 'prove' selective enforcement, and it doesn't void the CC&R from being enforced. It might make it difficult at first, but it's hardly proof of selective enforcement or of harassment.

If I have a light colored or white fence, and I repaint it a light color, even if it's a slightly different color, and I didn't get "approval," unless the board was AWARE of the repainting and KNEW what the original color was (which is unlikely in a large development especially), then I "got away" with it.

If, however, I have a white or light colored fence and I repaint it BLACK or DARK BROWN, that will more likely be noticeable to my neighbors and to the board and may rise to an awareness level some of the other residents didn't rise to.

In addition, if I repaint a color NOT the same as the original color, and get approval beforehand, then how is that "selective enforcement," IF the board went ahead and granted my color change? After all, I did what I was supposed to do, get approval BEFOREHAND if I am repainting a color different from the original (or previous) color.

So either way, the board is completely within its enforcement ability to require the member to put the fence back to its previous state BEFORE the brown color, since the homeowner did NOT follow the CC&R regarding repainting.

Then, if the residents want to approve a dark color, there is more than likely a procedure for doing that within the CC&Rs.

But, if the board does NOT enforce against this particular homeowner, who is clearly in violation, has bubbled up to the notice of the board for violation, and has been so notified, then they truly WILL be in a much more difficult position to ever be able to enforce fence color standards.

To ignore it simply because the resident screams "selective enforcement" erodes the board's ability in the long run.

They must at minimum request the resident to restore the color to the previous one.

I truly don't see how they have any other choice.

BradP (Kansas)
Posts: 2,640

Posted:

I agree with Karen and Sue...lets throw the color out for a second, lets imagine they painted it light brown...Did they get approval to do so, no, but have the others that changed colors get approval? That is the great unknown. The only reason they are having any issue is that it is a chocolate brown, if they had stuck to the "light hue" or whatever tht everyone else has done nothing would have been said even though they are in violation by changing the color. To me it sounds like selective enforcement, choosing to enforce your policy because you don't like the end result is not the right thing to do. Policy should be enforced from the get go and this kind of thing could be avoided.

MicheleD (Kentucky)
Posts: 4,491

Posted:

I didn't think for one minute that they were enforcing because they "didn't like it."

" Policy should be enforced from the get go and this kind of thing could be avoided."

And this is exactly what it appears they are doing.

And I see no problem with them following through on their enforcement.

BradP (Kansas)
Posts: 2,640

Posted:

Quote:

Posted By MicheleD on 04/20/2008 8:35 AM
I didn't think for one minute that they were enforcing because they "didn't like it."

" Policy should be enforced from the get go and this kind of thing could be avoided."

And this is exactly what it appears they are doing.

And I see no problem with them following through on their enforcement.

Michele:

question for you...are you 100% positive that every member of that community that changed their fence color submitted an ARC form and got it approved? If so I will concur with you, if not then I don't buy the fact that it wasn't the color that alerted them. If it had been painted one of the other colors in the neighorhood it wouldn't have been an issue, I base that on what I have heard from that person so far. They have no idea how all the colors got to be what they were, but they agreed that a light hue what appropriate.

SueW1 (Texas)
Posts: 26

Posted:

Specifically addressing the matter of a FINE for painting the house a different color.

the fine in and of itself is selective enforcement, if no one else got approval.

As for the color, that is a different matter.

Its the approval that should not be a fine.

If the restrictions at the time builder or homeowner purchased their property are already set, then they are indeed in violation. NO grandfather clause should even be considered. This is a lazy way of running a home owners association.

Go back in records and see when those homeowners purchased the homes. There are ways to getting the homeowners up to code.

Far too many times the board treats the homeowner like they are a tenant. Use fair judgment and time lines. There is no need to strong arm one homeowner at this stage. I know, a volunteer job like this can be difficult at times.

Forming a welcome wagon for new residents could give an opportunity in avoiding future problems with new owners.

MicheleD (Kentucky)
Posts: 4,491

Posted:

I don't have to be 100% positive about anything. And that's my point.

And it's a huge assumption to claim that just because a color is "noticeable" that it was not liked. Liking or not liking the color has nothing to do with whether or not it needed prior approval before being painted.

If approval is not required if the fences are painted the previous color, then it's very likely that there might have been several people who painted in a near-close color to the original, but they did not get "noticed," or "reported," simply because it's much more difficult to "notice" the color shift in light tan and white, for example. Heck, for all the average board member knows, the fence might have been the tan originally but faded or bleached whiter over the years. That fence, newly painted, may not get "noticed."

Or a fence that got painted white that had previously been a shade of tan, again, not a huge color shift where one or another board member would necessarily "notice," or where a neighbor didn't figure maybe the tan shade USED to be white but was aged over time.

Now, someone goes and paints, WITHOUT PRIOR APPROVAL, a WHITE fence DARK BROWN.

I think even the most unobservant of board members would do a double-take on that one.

So, the course of action to take would be to make the homeowner return the fence to the original color, then START OVER. If they want the fence brown, then submit an ARC Approval request for brown.

If brown is not an "approved color," then the resident is more than welcome to do the needed legwork to get the color approved through the neighborhood. Such as, obtaining a petition to call for a vote to approve brown as an acceptable fence color.

Could the board do it? Sure, but the board isn't the one who wants the new color.

The fence is in violation, regardless of how many others might have "slipped by" unnoticed. SHOULD the board have been aware of others that MIGHT have painted without prior approval? (remember, it only needs prior approval if it's going to be a different color than it was originally). Not necessarily. The resident would have to prove that the board SHOULD have known EACH AND EVERY repainting that was a different color, and I don't know how that could possibly be done.

If the homeowner wants to come to the board with a list of homes they feel are in similar violation, then they are more than welcome to do so. Until then, well, again, does your board memorize or have on file the color schemes of all the homes in your area? Do they go out on a weekly basis and inspect to make sure that no colors have changed? That's a pretty outrageous standard for enforcement, and I don't think that it's reasonable to assume that any board should or would have to do that.

So, again, should the board have been aware of any homes that repainted within a similar, but not exact, color scheme as the previous one? If the answer is "yes," then how?

It's pretty obvious that a brown fence would stand out more and be noticed. Not necessarily because it "offends" anyone or because anyone necessarily dislikes the color, but by the simple fact that previously THERE HAD BEEN NO HOMES WITH BROWN FENCES YESTERDAY AND TODAY THERE IS ONE.

Reasonable to assume then that the board would notice the "violation."

BradP (Kansas)
Posts: 2,640

Posted:

Michelle:

Thank you for seeing my point, if as you said that several homeowners got away with painting their fence a different color without approval and this homeowner is being brought up on that same thing then it is selective enforcement. Colors have nothing to do with it, fact of the matter if you change the color of your fence you need approval and if you are going to bust one, you need to bust all. I can understand a couple slipping through the cracks. But ignorance by the board is no excuse as is ignorance by the homeowner.

As I have said before, and will say again, the howeowner was wrong to not ask permission. I am not siding with them, just offering a different point of view.

GlenL (Ohio)
Posts: 5,491

Posted:

Brad it's only "selective enforcement" if others painted their fence dark brown and the BOD knowingly ignored them and only enforced on this homeowner. The OP stated that it was in their CC&R's that the fence could be painted the SAME COLOR without ACC approval; now if the fence was originally dark brown then the BOD doesn't have a leg to stand on.

Studies show that 5 out of 4 people have problems with fractions

MicheleD (Kentucky)
Posts: 4,491

Posted:

Brad said: "Thank you for seeing my point, if as you said that several homeowners got away with painting their fence a different color without approval and this homeowner is being brought up on that same thing then it is selective enforcement."

We are not seeing each other's point at all.

It's only selective "enforcement" if the board KNEW of the others or SHOULD HAVE KNOWN and did nothing.

We have no way of knowing:

a) that any who painted their fence a different color did not get prior approval.

b) that the board was aware that any who did paint a different color did not get prior approval.

c) that any who painted their fence a different color did not get fined.

You can't enforce against something of which you are not aware; and you can't assume that others have or have not been enforced against.

Your point seems to be that any infraction that is not enforced against, ever, in each and every case is "selective enforcement."

My point is that it's only selective enforcement if the board knew or should have known about prior violations and did nothing.

DJ1 (Ontario)
Posts: 798

Posted:

Don't worry Michele, the sun will fade the dark brown and soon it will be a lighter hue.

SueW1 (Texas)
Posts: 26

Posted:

Our by-laws have specifics but does not exclude violations that have been discovered after a period of time. So, we would have to certainly address the HO's who did not get approval as well. What is NOW relevant the boards knows about them. There should be equal application of enforcement when any violation (s) have occurred.

BradP (Kansas)
Posts: 2,640

Posted:

Quote:

Posted By GlenL on 04/21/2008 2:13 AM
Brad it's only "selective enforcement" if others painted their fence dark brown and the BOD knowingly ignored them and only enforced on this homeowner. The OP stated that it was in their CC&R's that the fence could be painted the SAME COLOR without ACC approval; now if the fence was originally dark brown then the BOD doesn't have a leg to stand on.

Glen:

Not correct...color has nothing to do with. Yes the CC&R's state you don't need approval to paint the same color. But you do need approval to change color, even if it is to a another color that has been approved in the neighborhood. That happened with other homes it sounds like.

Michele's answer of there is no way for the board to know doesn't cut it. Ignorance is no excuse, it is the job of the board to know these things, if they don't have a system in place then they need a management company who can do it for them. Sure a couple will fall through the cracks depending on the size of the community, but even then it isn't an excuse.

To me the board has been lax on this matter. They need to be proactive and tell the community what colors are acceptable. It doesn't excuse the homeowner from changing colors without permission, but in this case if the board is going to cast stones at them they need to look in the mirror first and maybe not cast as many.

BradP (Kansas)
Posts: 2,640

Posted:

Your point seems to be that any infraction that is not enforced against, ever, in each and every case is "selective enforcement."

My point is that it's only selective enforcement if the board knew or should have known about prior violations and did nothing.

So, in your opinion a good defense for any hoa board in court over selective enforcement is "we didn't know about it"...Let me know how that goes. The law seems to be pretty clear that ignorance is no excuse, the board is in charge of overseeing enforcement in their neighborhood...if they can't figure it out then they need to find someone who can help them.

My point in this matter is answering the question that was posed, is this selective enforcement...with what little information there is it seems to be that way to me. The board seems to bury its head and ignore changes if it conforms to their color scheme, even though advanced permission is required. Once someone steps outside the color scheme they pounce on them. Remember the CC&R's don't define what colors are acceptable, they define that permission is needed to change.

JackieB (California)
Posts: 198

Posted:

OMG.......I love this web site. If I had opened it over the weekend I might not
have gotten my grandkids to their swim meets. Thanks to each and every one of you for your sincere opinion. This needs closure so let me try.
140 homes approx. 10-20 feet apart.
at least 140 fences(with some lots having two.)
Our paint pallet books that we(me) keep to share upon request have the current
acceptable home/trim colors and samples of the vista tan for fences. But nowhere is it in writing that Visa Tan is fence color. All fences,except this
one gate, are white or pale tan (Vista). Fence colors have never been disputed
until a gate popped up dark brown, like See's chocolate suckers. Michele has
repeated this over and over and very accurately.......no ARC form, not the same
white color as prior gate, no fine rendered yet......and time has been allocated for them to determine if others feel the same way(dk colors =ok).
Web site with 52 members and only one opinion offered, in favor of the existing
white/tan which have existed through numerous BODs and ARCs. If they return next HOA mtg with a serious show of interest/suppport.....we/ARC committee will
post a survey on website and also send out "newletter" to gather opinions.
WE are a user/friendly BOD, although several of you would dispute that.
We value harmony among neighbors equally important to "property values", paint colors, etc. Our HOA web site was developed on "our watch" specifically to allow this sort of discussion. Interest hasn't peaked to this extent but most
feel appreciative of the effort to be fair/consistent, etc.
Again, My deep appreciation to each of you for sharing your views and attempting interpretation of my frustration.
Do I dare post "the conclusion/decision" when all is said and done???
Extra appreciation to Michele who was "right on" with each of her postings.
Let's party !!!!!
Jackie

MicheleD (Kentucky)
Posts: 4,491

Posted:

BradP: "So, in your opinion a good defense for any hoa board in court over selective enforcement is "we didn't know about it"...Let me know how that goes. The law seems to be pretty clear that ignorance is no excuse, the board is in charge of overseeing enforcement in their neighborhood...if they can't figure it out then they need to find someone who can help them. "

First of all, you can play fast and (semi-)wise with my words, but I did NOT say a good defense was "we didn't know ..." especially for "any hoa board."

I said this: ". . .that it's only selective enforcement if the board knew or should have known about prior violations and did nothing."

The keys: SHOULD HAVE KNOWN, and once known, DID NOTHING.

And I'll tell you how that defense goes.

It works quite well, thank you. Because that is exactly what our board has used as a defense on a few issues. We are quite sure there are random infractions and violations of which we are not aware and can not reasonably be expected to be aware that occur throughout the subdivision. Take on-street parking overnight. If a resident on a cul de sac that no board member lives on or travels on parks his commercial vehicle, a van, every night at 12:00 midnight on the street and then removes it before, say, 8:00 a.m., before the first board member who work leaves the subdivision, AND NOBODY REPORTS IT, how could the board reasonably be expected to be aware of that violation?

So we send a notice to a guy on ANOTHER street where the violation has been reported to us. He stakes out the neighborhood and finds that this other house never got a notice. He screams 'selective enforcement.' He forces the issue by challenging the violations all the way to a court case. Guess who won?

If you read several of my previous posts on our history with challenges, you will know that not only have opposing attorneys agreed with our position (after first making the claim), but in the few cases where it was carried all the way to a judge, the judge agreed with it, too.

We have records that show every single REPORTED violation was enforced against. We concede that there might have been violations of similar CC&Rs that we did not enforce against, because there is no way we could know or SHOULD HAVE BEEN ABLE TO KNOW that the violation existed. If the guy with the commercial van lived right next door to a board member, then it's a little harder to claim we did not know or that we couldn't have known.

It's not humanly possible for a board to be AWARE of every single infraction that occurs within a subdivision.

In the cases where a board KNOWS or SHOULD HAVE KNOWN about an infraction, and still did NOTHING, they will have a hard time defending against a selective enforcement challenge.

SHOULD the board have reasonably been aware of the original color of ALL fences (as it turns out, 140 of them), and SHOULD THEY HAVE REASONABLY been aware of each and any time one was repainted -- and SHOULD THEY HAVE REASONABLY been aware that the color shift occurred, when the light colors are very close in tone and hue?

I would argue no, they could not have reasonably been aware that a light tan fence on a street they seldom travel is now white. How would it become noticeable to them without it being reported by someone who DID know? On the other hand, if for a decade NO fence in the subdivision is BLACK (or DARK BROWN), and suddenly one shows up that is, they should reasonably be aware that the fence color was NOT ORIGINALLY BLACK/BROWN.

Then they not only need to enforce against it, they have a fiduciary duty to enforce against it! Even if they LIKE the color!

IF they knew the other colors were NOT the original and DID NOTHING, then that is selective enforcement, but based on what was shared with us here, I don't see that is what happened.

BradP (Kansas)
Posts: 2,640

Posted:

we will agree to disagree then...

MicheleD (Kentucky)
Posts: 4,491

Posted:

We agree to disagree: No doubt.

However, keep in mind, my position has already been judge tested.

We had one board member who was adamant that he did not ever want to file a formal notification on any violations he notices because he didn't want to get in the middle of anything (even though our notification process is anonymous).

After speaking with the attorney of his mother's HOA (over a similar issue in her subdivision, having nothing to do with us), he changed his mind. He did not want to put the board at risk of "selective enforcement" because there were violations on his street that he SHOULD HAVE BEEN AWARE OF, and yet did nothing.

He has a fiduciary responsibility as a board member and by not reporting violations that he knew of, he was putting the integrity of our documents at risk and our ability to enforce at risk as well.

After that he just has his wife make the notification.

As a result, later down the road, when we got into the challenges to enforcement that I mentioned earlier, it was much easier for us to support our position.

BradP (Kansas)
Posts: 2,640

Posted:

As I said we will agree to disagree...remember I never once said this homeowner was justified in what they did.

SueW1 (Texas)
Posts: 26

Posted:

lets say anyone of us here are standing before a judge....

the opposing attorney asks you.......

were their other homeowners who painted their fence a different color than what is on the cc&r and did not get approval.

What is your answer!

Do you say, yes

Do you say, no

or do you say well, yes but they are similar to what colors we have in the cc&r and they don't stick out like a sore thumb.

JackieB (California)
Posts: 198

Posted:

I would honestly respond that our CCR's don't state a color; simply the same
color...........
and I wasn't living here when 80% of the fences were painted and repainted and
rebuilt and repainted, and repainted. (20 year old homes.)
Jackie

MicheleD (Kentucky)
Posts: 4,491

Posted:

I would answer honestly:

"To the best of my knowledge, no."

SueW1 (Texas)
Posts: 26

Posted:

based on the information in this thread, would you still answer this way?

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