HOAs have flexibility in enforcement of rules

Q: I belong to a homeowners association and the builder had everyone sign that they read and received a copy of the covenants, conditions and restrictions. Before buying I was told by the builder’s agent that a professional management firm oversaw the HOA and enforced the CC&Rs.

It appears the only way the HOA is aware of violations is if a homeowner reports them. Sometimes they seem to enforce the violation of garbage cans in public view, and then other times they don’t. When I inquired as to why some cans were out after months and others weren’t I was told it was confidential.

It seems the HOA board selectively applies enforcement of violations. Don’t they have to follow our CC&Rs and apply them uniformly? It would seem if you don’t enforce all violations how can you do some and not others and hope that would stand up in court?

A: The sending of violation letter to homeowner is confidential to that homeowner.

Information pertaining to violations are derived from property inspections conducted by the management company, the board or by some delegated committee established by the board. Many homeowners do send correspondence to the association, alleging some violation exists within their community.

As to equal enforcement, in previous versions of Nevada Revised Statutes 116, the association was to enforce regulations equally and uniformly. In 2011, that law of equal enforcement was changed with the passage of NRS 116.3102 subsection 3a-d. The law states that the association may determine whether to take enforcement action, but it does not have a duty to take enforcement action if it determines that under the facts and circumstances one of the following conditions exist:

1. The association’s legal position does not justify taking any or further enforcement action.

2. The covenant, restriction or rule being enforced is or is likely to be construed as inconsistent with current law.

3. Although a 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 resources.

4. It is not in the association’s best interests to pursue an enforcement action.

Section 4 continues by stating that the board may not be arbitrary or capricious in taking enforcement action, i.e., the board does not like you and imposes sanctions on you but not on me because the board likes me.

Based upon your letter, one would think that all homeowners who are violating the garbage can regulations would fall under the same enforcement process by the board and would be receiving the appropriate violation letters.

Remember, not all homeowners comply when they receive a violation notice. Not all homeowners comply when they receive a fine for violating a regulation.

Barbara Holland, certified property manager, broker and supervisory certified association manager, is president and owner of H&L Realty and Management Co. Questions may be sent to the Association Q&A, P.O. Box 7440, Las Vegas, Nev., 89125. Fax is 702-385-3759, email is support@hlrealty.com.