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Homeowner says HOA has ‘double standard’ in enforcing rules

Q: I love your Sunday columns. It helps us residents living under homeowner association policies receive an unbiased perspective.

Without providing names, we live in a community where we are constantly confronted with a double standard between what we, as residents, are subjected to versus those on “common lands” maintained by our HOA.

Real examples are”:

Residents are often cited for unsightly stains on their driveways, requiring steam cleaning, yet our sidewalks around the community have thousands of feet of water stains that we’re told would be too expensive to clean and so they remain unsightly.

A “spot” as small as 1 square foot on our wall must be cleaned and repainted, while the common walls all around us have more obvious discolorations in innumerable locations that go unrepaired.

I could give more real examples regarding landscaping and others but you get the gist. Do we have any recourse or do we just suck it up and enjoy an otherwise pleasant community?

A: While I understand your frustration, the board should, at least, prepare a game plan. This plan would be partially supported by the reserve study, which itemizes the capital amenities as to when improvements should be made and at what approximate costs.

Associations will soon be sending their 2021 projected budgets for the homeowners to review, ratify or reject. Both board members and homeowners need to examine their reserve balances as documented in their reserve study (a copy of which homeowners can receive upon written request). No one likes to see an increase in their assessments but often a special assessment is necessary in order to have a properly funded reserve. It is from the accumulated reserves that the association can finance the various capital expenses, such as the condition of the walls.

Other items, such as the cleaning of the sidewalks, should be considered as part of the association’s game plan that can be included in its 2021 operating budget, along with any other deferred maintenance that are not reserve expenses. The unfortunate reality is that the funds to maintain the association come from its members. Your association is restricted as to the annual increase that can be imposed upon the membership without a specific vote from the homeowners to approve a higher increase.

Q: Love your column! We are a in a 55-plus community with a homeowner who is younger than 55 and inherited her property when both her elderly parents died. She’s not paying HOA monthlies and refuses to vacate the property.

Doesn’t her continued residence jeopardize our 55-plus status? We have restricted amenities use, but she refuses to leave. What else can we do?

A: No, her continued residence does not necessarily jeopardize your 55-plus status. If she is not paying the association’s monthly assessments, your board needs to begin the delinquency/foreclosure process.

Q: Is the HOA board required to enforce covenants, conditions and restrictions?

It seems our board of directors ignores most violations, especially from those members of the community who make the most noise.

Other longtime faithful residents feel that if the board is ignoring “clear violations,” why should anyone be expected to listen to the board.

Can the board pick and choose at its discretion some violations to ignore and others to send violations and or fines?

A: Your board should be enforcing its governing documents. Technically, the board should not pick and choose at their discretion some violations and ignore others but under NRS 116.3102 (3-5), the association does not have a duty to take enforcement action if it determines that under the facts and circumstances presented: 1. The legal position does not justify taking any or further enforcement action. 2. the governing documents is or is likely to be construed as inconsistent with current law. 3. Although the violation may exist or may have occurred, it is not so material as to be objectionable to a reasonable person or to justify expending the association’s resources. 4. It is not in the association’s best interest to pursue an enforcement action.

In section 4 of this law, the board’s decision not to pursue enforcement under one set of circumstances does not prevent the board from taking action under set of circumstances as long as the board does not action arbitrary or capricious in taking these enforcement actions.

Barbara Holland is a certified property manager and holds the supervisory community manager certificate with the state of Nevada. She is an author and educator on real estate management. Questions may be sent to holland744o@gmail.com.

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