Unfair, Selective, Wrongful Enforcement of CC&Rs

[SoFo]

Hi Folks,

I have a question regarding what may seem a trivial issue regarding a yellow umbrella and the HOA for my rental property. Trivial, yes, but the threat to be fined is not.

Can an HOA enforce or impose a fine for an unwritten rule? They are citing the following written rule pertaining to outdoor furniture. "Only 'regular outdoor furniture can be used". But they go on to say in their own words, 'patio umbrellas must be of a 'neutral color' even though the 'neutral color' language is nowhere in the rule as written in the CC&Rs. Additionally, there are other umbrellas in the community of red, blue and even lime green, none of which are considered to be 'neutral colors'. Our tenant's new umbrella is yellow.

Clearly this HOA is being selective in their enforcement and clearly there is no written rule stating 'neutral colors' are all that are permissible. We are new owners and we feel we are being singled out, why, we don't know.

We have responded in writing to the HOA's demand and it sent another letter that completely ignored our response but only threatened a fine for non-compliance. A hearing is scheduled for October 15.

Has anyone had a similar experience? Can the HOA impose a fine for an unwritten rule and if so is small claims court their only means of collecting? We'd be more than willing to plead our case in that court where more reasonable minds might prevail.

Thank you in advance for your comments.

 

[dee_dub]

Can the HOA impose a fine for an unwritten rule and if so is small claims court their only means of collecting?

They can certainly try, and yes, if you don't pay, small claims court is their recourse. They'll need to convince a judge a) that "normal furniture" has a specific meaning that includes the furniture be of a neutral colour, and b) yellow is not a neutral colour.

We'd be more than willing to plead our case in that court where more reasonable minds might prevail.

Sounds like a plan. Good luck to you. I'd be taking pictures of all the non-cited umbrellas so you can point out that lime green etc. aren't considered to be offensive, so yellow certainly is not either.

 

[SoFo]

Thank you for your response Dee. We're looking forward to the October 15 association meeting where we will hopefully get some answers. As I wrote above, the association has yet to even acknowledge receiving our letter and/or the points we make in it. We plan to audio tape the hearing so when we ask the board members questions regarding the issue they cannot deny in court saying what they said. I'm especially interested in their response to my pointing out how selective they are in their enforcement of this unwritten rule.

I'll update this thread when I have those answers.

 

[jharris352]

HOA: a royal pain in the Umbrella

Don't feel too much like this is trivial. You bought the property and as much as is possible you should be able to use and decorate the property as you wish. In the mean time the HOA Gestapo will stick their noses into your business as much as you let them.

The answer is NO. They can not amend the rules as they see fit. There are bylaws and rules for amending those bylaws, they must be followed. When you buy into a subdivision with a homeowners association the bylaws must be recorded as an easement lien on your property. Because you buy the property subject to those rules they can be enforced against you.

The rule you cite is obviously so that people will not use a dining room table and chairs, or a card table and bar stools at patio furniture. (YES people do that and other things!). The rule is not meant to chose your colors for you. Go to the hearing and hold them to the rule. Hopefully your HOA has a third party management association so that you have a fair hearing.

 

[jharris352]

P.S. Simple is better. I personally wouldn't get into a p*ssing contest about selective enforcement. I would simply stick to the fact that there is no such rule. Then at the next HOA election I would get rid of some board members.

 

[SoFo]

Thank you jharris. While I plan to focus my argument mainly on the fact that the association is trying to enforce an unwritten rule I do think it is important that they are being selective in that enforcement. I say this because I have walked the neighborhood, camera in hand, and have recorded the existance of no less than 10 other umbrellas that by any stretch could not be considered to be of a "neutral color". We're being singled out and I think that is important. At minimum I want to know why. Thanks again.

 

[jharris352]

Welcome to Soccer Mom hell, otherwise known as a Subdivision ruled by the HOA. Good luck. (And NO, the reference to Soccer MOMS was not an attempt to make it a female problem)(Men love to be on the HOA because they are suddenly in POWER!)

 

[SoFo]

I feel I should add; the HOA has sent another letter, a form letter that was sent to all homeowners. In it they complain about loud colors of windowcoverings and expressed the importance of "uniformity" in color obtained, of course, by adhering to the unwritten rule of "neutral colors". We understand that, but again, that is an unwritten rule AND could they and should they be allowed to selctively enfore it? Uniformity, by very defitition, requires uniform enforcement or the goal of uniromity can never be acheived.

I think it's clear, what we have is a board whose members have no clue what they are doing.

Thanks again for your response.