By Damien M Bielli, Vial Fotheringham, LLP
The Colorado Common Interest Ownership Act prohibits an association from selectively enforcing declarations, articles, and bylaws. The statute commands that, “[d]ecisions concerning the approval or denial of a unit owner's application for architectural or landscaping changes shall be made in accordance with standards and procedures set forth in the declaration or in duly adopted rules and regulations or bylaws of the association, and shall not be made arbitrarily or capriciously.” C.R.S. 38-33.3-302(3)(b).
Selective enforcement by an HOA is a failure to uniformly apply the HOA’s rules and regulations to all owners. This can occur in architectural requests, collection of unpaid assessments and most commonly in enforcing rules and regulations. Simply, the HOA is guilty of selective enforcement when it picks and chooses how enforcement is carried out and against whom the rules are enforced. This can occur intentionally or by oversight and is problematic when the Association faces judicial scrutiny.
Selective enforcement is like selective hearing. As a husband and father, I have been accused of selective hearing. Some may believe this is intentional. More often than not it is merely a failure to pay attention. In the same way, selective enforcement is viewed by many as an intentional act of the association. This leads to animosity between owners and board members and can lead to claims of discrimination. Most significantly, it is an affirmative defense to enforcement actions against owners. Most of the time, however, selective enforcement arises from benign causes and is preventable.
Many selective enforcement concerns can be alleviated by instituting and following comprehensive and specific policies. These policies should be clear and concise and provide a timeline of enforcement from inception to conclusion which can be followed by owners and board members. Strict adherence to policies removes subjective decision making which may be viewed as “selective” and ensures that each violation follows the same path to conclusion.
In evaluating an owner’s claim of selective enforcement, courts in Colorado will evaluate the enforcement process of the association as well as its history of enforcement:
“It appears from the log of the Plaintiff that it has consistently looked into possible violations as set forth in Plaintiff's Exhibit 27. As an example, it appears that a total of 125 violations were issued in the 13 months period between April 2007 and May 2008. There were also 57 [Design Review Requests] processed between January 2006 and May 2008. That does not require that every violation be sustained or even pursued upon proper investigation but it does indicate that there is no selective enforcement going on here.”
Weatherspoon v. Provincetowne Master Owners Association 2010 WL 3522559.
It is important that the association keep detailed records of its enforcement actions not only to provide supporting documentation for individual violations, but also as evidence of its uniform enforcement throughout the community.
Equally important to a uniform and neutral enforcement policy is uniformity and consistency in reporting violations. Associations that rely on management to observe and report violations can look to the management contract for frequency and depth of inspections. This reduces the likelihood that an owner will be successful on a claim for selective enforcement. Associations that are self-managed should adopt guidelines for inspections and reporting violations. The guidelines should identify the depth and frequency of inspections in order to remove any subjectivity. This reduces inconsistency in the inspection and reporting process and serves to further neutralize allegations of selective enforcement.
Finally, associations who have been more relaxed in enforcing the Declaration may find themselves in a precarious position once the Board decides to pursue violations. One Colorado Court stated:
“In Colorado, a homeowners' association is estopped from enforcing a covenant against a particular owner where (1) the association had full knowledge of the facts, (2) unreasonably delayed in asserting an available remedy and (3) there is intervening reliance to the detriment of the lot owner. Woodmoor Improvement Assoc. v. Brenner, 919 P.2d 928, 931 (Colo. App. 1996); Holiday, Acres Property Owners Assoc., Inc. v. Wise, 998 P.2d 1106 (Colo. App. 2000) (homeowners association estopped from enforcing a covenant upon a lot owner). See Cole v. Colorado Springs, Co., 381 P.2d 13 (Colo. 1963) (corporation waived right to enforce a restriction when in the past it acquiesced and refrained from enforcing it against others).”
Schneider v. Eglantine Condominium Association Inc. 2009 WL 2626287 (Colo.Dist.Ct.) (Trial Order).
While the Court concluded that the association waived its right to enforce the documents in this particular case, the decision was based upon the association choosing when to enforce its governing documents.
While some Board members may be sympathetic to certain homeowners or consider certain violations as more or less significant, the association, through its board, has a duty to uniformly and consistently apply the rules and regulations to every owner. Failure to do so will likely result in frustration of enforcement efforts and financial consequences.
Damien M Bielli, is a Partner with Vial Fotheringham LLP. Damien has an extensive background in Homeowners’ Association Law, Non-Profit Corporate Governance, trial advocacy, insurance defense, professional liability, coverage disputes, employment law, construction, commercial litigation, and contracts.
