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Subject: HOA Selective Enforcement
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Author Messages
SamJ6
(Wisconsin )

Posts:15


02/19/2021 9:22 AM  
My HOA been targeting my house for over a year now. Each monthly meeting they don't mention any issues with other properties but my house. They decided to survey a pond that my house is on for the main purpose to force me to remove a hedge. They have not surveyed any other area in the neighborhood besides the pond my house is on. They found about ten of the houses have trees that are off the boundary line but only three houses have a fence or a hedge that is off line, which I'm one of the three. They are choosing to go after the houses that have encroached a common area with a fence or a hedge but they are going to ignore the ones that have trees such as palm trees, fruit trees, etc planted by the homeowners completely off the boundary line. There is nothing in the bylaws about encroaching. Can they legally ignore the houses with trees encroaching but go only after fence encroaching or would this be considered selective enforcement?
JohnC46
(South Carolina)

Posts:10651


02/19/2021 9:30 AM  
Sam
My initial blush is fences and/or planted hedges are man made whereas the trees could be natural. Bottom line, and you admit it, is your fence encroaches on common area. I do not see this as selective enforcement as they are going after 3 of you for the same offense.
SamJ6
(Wisconsin )

Posts:15


02/19/2021 9:38 AM  
In my opinion, if there is an encroachment regardless if it is a tree, hedge, fence, or any object it is still an encroachment. So we are comparing apples to apples. I don't believe anyone can have a special exception because their objects that are off the boundary line are separated trees and mine is a hedge. I do think that all the trees off line must be also addressed and be taken care of if they are going after the hedges.
SamJ6
(Wisconsin )

Posts:15


02/19/2021 9:40 AM  
By the way, those trees were planted by the homeowners. it is not natural.
SheliaH
(Indiana)

Posts:3824


02/19/2021 11:08 AM  
You may be right about all this, but can you prove it? Sometimes homeowners cry foul when they get a violation letter when in fact, the board is doing what it's supposed to do. The question is are they doing it consistently and fairly?

If this has been an ongoing problem, but previous boards have ignored it, it may be this board has decided to finally enforce the CCRs. The problem is it may have been so long since any of them have been enforced that they may be deemed unenforceable - that's something a judge has to decide, so if you're willing to go that route, have at it and good luck.

But first, there's the matter of your proving the other trees were planted off the boundary line. This may mean getting some property surveys - in some cities and counties, surveys are public records, so check what's what in your area. If they are public records, you can go to the appropriate agency and get copies. That may also include surveys the HOA obtained. And how do you know the other 10 homes with the trees off the boundary haven't received letters from the board? If you can prove that, that would also be part of an appeal - or perhaps legal action if it comes to that.

One more thing to consider - is it possible this enforcement is coming down because those trees and hedges are creating problems for the common areas, such as the roots growing into sewer lines and causing overflow issues? Maybe the trees are creating some sort of hazard due to large falling branches - it's bad enough if there are near misses involving someone's roof, but what if the branch goes smack on a roof or power line (causing problems for several of your neighbors?)

SamJ6
(Wisconsin )

Posts:15


02/19/2021 12:22 PM  
The whole situation started when they came after me about a year because they didn't like how tall my hedge was but there was no bylaw that limits how tall it should be. I've also had it for about 8 years now and it falls under the statute of limitation. So they've been arguing with me about it for almost a year. Then they decided to take a different approach at it and survey the entire pond my house and 12 other houses are on.

The survey they've done clearly shows ten houses have trees that are off. The survey markers around the pond also clearly show which trees are off. In their last meeting which I've attended, they discussed it and said that they will send letters to houses with hedges or fences that are off-line but they wouldn't go after just trees.

I can prove that these homeowners planted the trees through aerial imagery on the county appraiser's website. These trees were not there a few years ago. Also, my hedge is not causing any problems for the common area and it is near anyone's property. There are no sewer lines or power lines next to that can be damaged either. I've had for about 8 years with no problems and that's not why they're going after me for. I think they just felt defeated when they couldn't anything about the height so their ego got to them.
SamJ6
(Wisconsin )

Posts:15


02/19/2021 12:24 PM  
I meant to say it is NOT near anyone's property.
BenA2
(Texas)

Posts:800


02/19/2021 12:37 PM  
It may be selective enforcement but that is not necessarily wrong. As long as they have a rational reason for not enforcing all the encroachments, I think it is perfectly fine.

It could be that they believe the trees actually benefit the common area so they choose not to take action. I don't know if this is the case but a fence or hedge usually create a barrier to foot traffic, a tree does not.
TimB4
(Virginia)

Posts:17439


02/19/2021 2:35 PM  
Keep in mind that selective enforcement is a defense for the courts.

Associations should try to avoid selective enforcement issues as it limits their ability to win if the issue goes to the courts.
SheliaH
(Indiana)

Posts:3824


02/19/2021 3:23 PM  
It's not about what you THINK but what you can PROVE. You say the board didn't like how tall your hedge was - how do you know? Got any violation notices? If you say you can prove these homeowners planted the trees and everything else, get an attorney and go for it, or see if you can sue in Small Claims Court where you won't need an attorney.
SamJ6
(Wisconsin )

Posts:15


02/19/2021 4:47 PM  
Yes, I have received violation notices for how tall the hedge is and I have a recording of them discussing the whole issue about the height and one of the board members even saying they don't like the way it looks.
SamJ6
(Wisconsin )

Posts:15


02/19/2021 4:47 PM  
But now that is not the issue because they are going after the boundary line.
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