Historically in Saratoga Hills, we have approached our CC&Rs and any violations thereof with a more relaxed approach - relying on complaints or neighbor prompts to bring focus to any potential violations. This certainly provides a more “laid back” feel to HOA governance, however the practice is not without risk. While the HOA Board and all prior resident Boards have fairly and faithfully followed the practice, without prejudice or bias, the simple practice of enforcement only upon prompt or complaint can lend itself far more easily to accusations of selective enforcement. In fact in 2023 we had an issue wherein a neighbor sought legal counsel and accused the Board of selective enforcement - requiring significant expense, documentation, and volunteer time to resolve. Though this was seemingly limited to a one-time event, the threat and dialogue that followed had more far reaching consequences - contributing to resignations, ongoing legal expenses, and ultimately the enlisting of a property management service again as self-management in the current environment seemed rather impractical if not impossible given the reluctance of Board members to continue handling common issues directly.
What is selective enforcement and why is this such a big deal?
If any given CC&R is applied and enforced for some but clearly not for others, it may give the appearance of bias which can negate the enforceability of any given rule if such a case were argued in court. For more details, simply research cases of selective enforcement.
Adding to this concern is the fact that Board members, while volunteers, carry certain duties as Directors of a properly formed and registered corporation in Texas. There are duties of loyalty as well as fiduciary duty - each with its own well-tested definition when it comes to the law in Texas. Any breach of these could introduce personal liability to a volunteer - obviously not a welcome threat.
Why does this matter now?
In short, it matters now and is coming up because we have now enlisted the help of a professional management company for our HOA. In doing so, one of the key approaches to avoiding any accusations of selective enforcement is a 3rd party that evenly and regularly reviews our community for any violations. Certainly there is judgment involved where terms like “screened” or “hidden from view” are concerned, but the importance here is that they apply these evenly and fairly across the community, and do so without any bias that could more easily be perceived when coming from a fellow neighbor - whether a Board member or not.
What if I receive a violation that I disagree with?
First, review the CC&Rs and objectively judge whether the violation (our courtesy letter) is fair. Is the violation true? Is the cure period a fair timeline to fix it? Often, we may disagree with a violation on the basis that there are special circumstances at play. If this is the case, simply share those with RowCal and we will handle them on a one-off basis. If there are special circumstances but the cure period is fair and the letter is only a zero fine courtesy notice, simply address the issue and nothing else is needed. A 3rd party will never be able to proactively take into account unique circumstances unless you tell them ahead of time. This works to our advantage as well - there is simply no bias one way or another. If you are working on something that requires materials stored in the visible area of the yard, or that requires items be stored outside of the garage for example, these usually fall into architectural requests so just make sure they are part of the process.
Summary:
In our current environment (and as a standard for most HOAs), engagement with a 3rd party like RowCal is needed. Objectivity is needed. None of this is targeted to upset or challenge specific neighbors or situations. We all have the CC&Rs, they are posted online, and if we disagree with them and their intended ability to protect property values, there is a clear path to changing them. While they remain though, plan for them to be followed and work with Rowcal and the Board for special situations.
