Peter Calabrese, a leading attorney in Boston

By: Peter Calabrese • Posted on Oct 05, 2020

Peter Calabrese is the firm’s founding member and chair of the Construction, Litigation and Real Estate practices; he also handles Appellate Litigation cases. Mr. Calabrese’s practice covers a broad spectrum of litigation matters related to commercial and residential real estate, condominium association and construction disputes, and he maintains a niche practice that focuses on high stakes appellate litigation, administrative law and regulatory matters. Peter is a contributing author for MLCE, and has also been featured in Forbes & Fortune and Boston Magazine.

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Condominiums, Real Estate

What to Do If Your HOA Is Not Enforcing Rules?

A homeowners association (HOA) is an entity comprised of property owners who live in a specific residential
neighborhood or condominium. Typically, the goal of an HOA is to enforce certain building and use
restrictions and maintain common areas.

What can you do if your HOA rules are not being enforced equally? Has your HOA avoided fixing the elevator to your condo for longer than necessary? Has the landscaping been dead or overgrown for months? Maybe you are trying to do construction work, but the homeowners association is refusing to approve your construction project. You know your HOA is responsible, but what HOA legal action can you take? Can an HOA be sued? At Calabrese Law Associates, we can help you with your homeowners’ association law dispute.

Enforcing HOA Community Rules and Regulations

Your HOA has governing documents that include rules, restrictions, and covenants about how you are allowed and not allowed to use your property. The HOA rules may cover whether you can paint your driveway, what type of landscaping you can include at your property, what approvals you need before you can add on to your condo or home, and whether you can rent your house to someone else.

Violating HOA rules may cause you to receive a fine and notice for compliance. If you have found yourself on the receiving end of punishment or fines from your HOA, you should understand what your rights are. Depending on your homeowners association, there are different procedures for enforcing rules, restrictions, and covenants:

Neighbors report violations: For some HOAs, rules are only enforced
after a violation is reported. For example, if your neighbor calls your HOA to report that you do not bring in your garbage can on time.
Property managers or designated representatives report violations: Under another HOA, the property manager or another designated representative may perform routine inspections and record any violations. Your property manager may patrol your neighborhood on trash day at 7 p.m., for instance, to note whose garbage cans remain on the curb and issue violations to these homeowners.

Both methods are accepted as long as they are used uniformly and conform to established procedures. HOA organizations must enforce community rules fairly and consistently. This means all HOA rules should be in the best interests of the community members and their safety.

Under the law, if your HOA is not consistent in its enforcement of a rule, it may have waived its right to enforce this rule in the future. Do you believe you were unfairly punished because your HOA is not enforcing rules on other homeowners in the community? In this case, you may be able to pursue legal action for an HOA dispute or a condo law dispute with the help of the lawyers at Calabrese Law Associates. Contact our lawyers today for help with your condominium law dispute.

Understand the HOA’s Obligations

Before you can determine what the best course of action is, you should understand the obligations of the HOA. Review your governing documents and other rules and regulations. Typically, the obligations of an HOA include the following:

The HOA must act in the community’s best interests.
The HOA must perform duties in a reasonable and fair manner.
The HOA may not act in a capricious or discriminatory manner.
The HOA board members must follow the rules and regulations of the homeowners association regarding their management and operation of the entity.

When you bought your property, you should have received a copy of the governing documents. If you did not get a copy of these governing documents, you can request them from the HOA or the county’s real estate records.

For most developments, repairing, replacing, and maintaining the common areas are part of your HOA’s major duties. Depending on the amenities in your community, maintenance responsibilities for common areas may include:

Maintaining elevators
Lighting and heating a clubhouse
Maintaining community pools
Providing landscaping services for parks

Along with regular maintenance, your HOA may need to handle repairs and replacements, such as for broken-down equipment in the fitness center or an unsafe elevator. The governing documents usually mandate that the HOA adopts an annual budget to establish the anticipated costs for maintaining the common areas, along with an amount that should be held in a reserve fund for repairs and replacements in the common areas. To cover these costs, an HOA must typically collect periodic dues or special assessments from every homeowner or condo owner.

Can the Homeowners Association Enforce Rules?

HOA rules can be enforceable as long as the rule meets four particular standards:

It complies with all state and federal laws.
It is reasonable.
It was adopted according to procedures established in the HOA’s governing documents.
It is enforced equally and consistently across all homeowners.

How Does the HOA Enforce Rules?

Your HOA should follow a general process to enforce rules, which may be outlined in the association’s governing documents, such as the bylaws. Some of the steps include the following:

Have a board discussion
Issue a warning
Issue a penalty or fine
Suspend rights and privileges
Take legal action

Can the HOA Ignore Complaints?

An HOA should not ignore complaints from homeowners because their responsibility is to address resident concerns. Ignoring complaints can lead to a dysfunctional community environment and distrust.

Still, it’s important to consider that the HOA may have other pressing issues to prioritize over other complaints due to their increased urgency and impact on the community. In other cases, they may disagree with the homeowner’s perspective and not act on complaints. Consider discussing your situation with an HOA law attorney to discover whether your HOA is unrightfully dismissing your complaint.

What Happens if an HOA Violates Their Own Rules?

When an HOA violates its own rules, homeowners can take legal action. However, there are two key aspects to consider:

Last resort: Taking legal action is the last resort available to homeowners when their HOA fails to uphold its rules.
Lawsuit potential: Homeowners can sue the HOA, but they must substantiate their claim, proving the violation of the HOA’s own rules.

Is There Selective Enforcement?

When you are a condo owner or homeowner who lives in a community that is governed by an HOA, you agree to follow certain rules and standards. If you break any of these rules, you are subject to the HOA’s enforcement power as granted by the governing documents and applicable state law.

What Is Selective Enforcement?

Selective enforcement is when the HOA enforces a rule against one homeowner or a particular group of homeowners yet does not enforce the same rule for other homeowners. For instance, your HOA may limit the number of pets allowed per household. If you get a notice for exceeding the limit but have seen other households in the community have more pets, the HOA may be selectively enforcing the rule.

What Is Improper Selective Enforcement?

Not all selective enforcement may be ill-intentioned. For instance, if your HOA only enforces a rule when a violation is reported rather than performing routine inspections, the pattern of enforcement will depend on whether your immediate neighbors are invested in reporting alleged violations.

Further, new board members may believe the previous board was too lenient, which can result in the enforcement of rules that were not enforced by previous board members. Additionally, there could be an increase in a certain kind of violation, and the HOA board may believe they should make an example of one or more homeowners. No matter the reason, the result is still improper selective enforcement.

Can You Sue Your HOA for Selective Enforcement?

Yes, you may sue your HOA for selective enforcement if you have a valid claim. For a fair outcome, you’ll need to successfully demonstrate that you are a community member, that the HOA is responsible for enforcing rules, and proof that the HOA enforced the rules in an unreasonable, discriminatory, or arbitrary manner.

How to Prevent Selective Enforcement

To avoid selective enforcement, try to follow all the rules you agreed to follow when you purchased your home or condo. If you plan to redo your landscaping, renovate, or add on to a structure on your property, you should first consult your HOA’s governing documents to ensure your plans are within the neighborhood guidelines and you follow the correct procedure for getting approved.

Review your HOA documents periodically to ensure you understand each of your obligations, and before you report a neighbor for any alleged violation, you should confirm all the rules you are supposed to follow.

What to Do If Your HOA Is Not Enforcing Rules Equally

If you receive a violation notice that you believe is improper selective enforcement, you have options for how to proceed:

Review the governing documents: First, review the governing documents to determine whether what the HOA board claims about the rule is true. This can help you figure out whether you indeed violated this rule. For instance, if you construct a deck before getting approval from your HOA and you use a type of wood that is not permitted under your HOA’s rules, then your HOA may notify you that you must remove the deck.
Gather evidence: Look for witnesses who can provide testimony and gather as much evidence as you can to help strengthen your claim or complaint.
Submit a letter to the board: Next, you can draft a letter to your HOA that outlines your case, particularly if you are aware of a reason that you may be targeted while other homeowners are not. If you know that other homeowners have built decks from the same type of wood, for instance, then you can note these properties in your letter, along with how long they have had these decks. An experienced homeowners association lawyer can help you draft a strong, appropriate letter.
Schedule a private meeting with the board: If they have not responded within a reasonable time frame, have a private meeting with the board to explain your viewpoint in detail. Bring a copy of the HOA’s governing documents and other proof to support your claim.
Raise the issue during board meetings: Discussing your complaint during board meetings with other homeowners can help you gain more support when closed-door meetings are unsuccessful.
File a lawsuit: If your issue is not reasonably concluded in one of the above steps, you may contact a lawyer for help with filing a selective enforcement HOA lawsuit.

Ready to pursue an HOA lawsuit? Contact the lawyers at Calabrese Law Associates to get help today.

What to Bring to an HOA Meeting

When a meeting is scheduled, bring a copy of the governing documents’ applicable provisions, along with any evidence or witnesses that could be helpful. For instance, if a neighbor paints their home bright pink, you may want to bring a copy of the provision in the rules and regulations or the covenants, conditions, and restrictions (CC&Rs) that prohibit bright paint colors. You may also want to take some pictures of your neighbor’s home and bring them to the meeting.

During the meeting, the HOA may agree with you and enforce the rule per your request. Even if your HOA does not have real power for enforcement, the rule does not have to be ignored. Your HOA may take steps to get the offending homeowner or condo owner to comply, such as by sending a written notice of the violation.

After you have a meeting with the HOA, keep records of the meeting. If your HOA does not agree to honor your request and you choose to later take action against your HOA, records of the meeting could prove useful.

HOA Responsibilities and Duties

If the HOA meeting does not resolve the issue, you may want to familiarize yourself with the responsibilities and duties of your HOA according to the governing documents so you can determine how you can get the HOA to enforce your community’s rules.

Typically, an HOA is given the power to impose fines on any homeowners or condo owners who violate the rules. Additionally, your HOA may have the power to sue members. If a rule is discretionary, your HOA may have leeway about whether and how it can enforce the rule.

If your HOA has no powers of enforcement or the rule you want your HOA to enforce is discretionary, your only option may be to attempt to amend the HOA’s governing documents.

Taking Legal Action Against Your HOA

If your HOA is not performing its duties or you cannot remove a nonperforming HOA board member, you may be able to bring a lawsuit against your HOA. Under state and federal laws, the HOA has obligations to community members.

If you can show that your HOA is acting in a discriminatory or unreasonable way or your HOA fails to put the interest of the community above any individual interest, a lawsuit may be warranted. For example, if your neighbor is not fined for breaking a rule because they are a member of your HOA, this decision benefits only that board member. Worse, the decision could be detrimental to the rest of your community, such as through the reduction of property values.

Pursuing a lawsuit against your HOA could be complicated. If you have a major dispute with your HOA and you have evidence against your HOA, you may want to consider filing a lawsuit. To win your case, you will need to prove there have been other violations of the rule by other homeowners or condo owners and that your HOA did not enforce the rules against them.

If you are unable to resolve the issue by appealing to the board directly, consider consulting an experienced lawyer at Calabrese Law Associates in Massachusetts who can assess the merits of your HOA case and offer you advice on the best action to take.

Why Trust Calabrese Law Associates

Calabrese Law Associates is a law firm in the Greater Boston Area that offers services in various practice areas, such as business law, investment law, construction law, and real estate law. Our HOA attorneys have years of practical experience handling disputes between homeowners and HOAs.

We have honed our knowledge of the latest HOA laws, allowing us to provide our clients with information that enables them to make informed decisions. We aim to understand each client’s unique situation and develop effective and personalized legal advice to help them achieve fair results.

At Calabrese Law Associates, we prioritize long-standing relationships with our clients through quality client experiences. We maintain accessibility by returning phone calls promptly and staying honest with our clients to create realistic expectations. This understanding allows us to create the best strategies and solutions for your particular situation.

Get in Touch With an HOA Law Expert

Since the parties involved in a Massachusetts HOA law dispute frequently live in the same community where the HOA dispute is ongoing, you need an experienced HOA lawyer from Calabrese Law Associates on your side. Our lawyers aim to resolve disputes efficiently and effectively. Along with HOA disputes, we handle cases that concern:

If you are in Boston, Massachusetts, and your HOA is not enforcing rules, contact the HOA attorneys at Calabrese Law Associates today to discuss your selective enforcement HOA lawsuit.

*This publication and its contents are not to be construed as legal advice nor a recommendation to you as to how to proceed. Please consult with a local licensed attorney directly before taking any action that could have legal consequences. This publication and its content do not create an attorney-client relationship and are being provided for general informational purposes only.

*Attorney Advertising. Prior results do not guarantee a similar outcome.

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