Is Selective Enforcement of Restrictions Acceptable?
Q: Some of my neighbors and I recently received notices for violations of our community’s restrictive covenants (CCRs) based on the condition of our lawns. However, the homeowner across the street from me has four or five commercial vehicles parked in the driveway, often on the street, and sometimes on his lawn. My understanding is that this also constitutes a violation of our CCRs. The appearance of his home and the vehicles make the community less attractive, and it’s affecting property values and making it harder for owners to sell their homes.
Is it possible for us to find out what warnings or fines have been issued to the offending owner? Does the board have the discretion to decide which provisions of our CCRs to enforce and which to ignore?
A: Your first job is to get a copy of your community’s CCRs, as well as any rules and regulations published by the HOA, and read them carefully to determine exactly what is and is not allowed with respect to lawns and parking of vehicles. Some communities have no restrictions or standards for lawns or parking of vehicles; others have very specific restrictions. Still others have very vague or ambiguous restrictions. The North Carolina Court of Appeals has issued some decisions in the last few years which basically held that if a restriction is so vague that it’s impossible to apply an objective standard to whether a violation actually exists, then the restriction is not enforceable. One of those cases involved a community with a restriction that required owners to keep their lots and homes in a “clean and sightly condition . . . so as to maintain a compatible aesthetic appearance with other well-maintained lots and structures.” The court found that such a standard is “ambiguous and susceptible to various conflicting interpretations . . . subject to individual subjective interpretation based on personal preference,” and ruled that the restriction was therefore void because it was too vague.
You, as an owner, are generally not legally entitled to copies of violation notices or information on fines issued against other homeowners. However, if you come to the conclusion that your neighbor’s commercial vehicles or the manner in which he parks them are a clear violation of the CCRs, then it is fair for you to request a meeting with the HOA’s board of directors to ask if they have taken any action to address the violation, and if not, why? The board has a general fiduciary (legal) duty to enforce the CCRs consistently and uniformly, unless there is a very good reason why they cannot. North Carolina gives HOAs the right, in most cases, to levy fines against scofflaws of up to $100, or $100 per day for continuing violations, and/or suspend community privileges and services provided by the HOA (such as use of a pool or clubhouse, cable TV, water or other utilities).
If your CCRs do not have adequate (or sufficiently specific) restrictions addressing lawn maintenance, commercial vehicles, or parking, then your board should consider proposing to the members an amendment to the CCRs to clarify the language. Having clear standards by which the restrictions are to be enforced will remove a lot of the uncertainty for owners and make the board’s enforcement duties much simpler.
This column was originally published in the Charlotte Observer on June 25, 2016. © All rights reserved.