How To Handle a Selective Enforcement Dispute

What is Selective Enforcement?

Selective enforcement is a situation where an HOA enforces its rules and regulations against one homeowner while allowing other homeowners to violate the same rules without similar consequences. For instance, a homeowner might receive notices for having overgrown shrubs or a peeling wall, while neighbors with similar issues are left unaddressed. Unequal application of rules can sometimes be influenced by interpersonal conflicts or perceptions of unfairness, which can be frustrating for the affected homeowner.

Legal Implications of Selective Enforcement

Concerns about selective enforcement may arise where a board member’s personal conflict with a homeowner appears to influence enforcement decisions. In California, HOA governing documents often address enforcement standards, and the Davis-Stirling Common Interest Development Act sets procedural requirements for HOA enforcement and owner discipline. Depending on the facts, inconsistent enforcement may raise issues under the governing documents and can, in some situations, be cited as part of a dispute about whether enforcement was proper.

That said, whether selective enforcement constitutes a legal violation (and what remedies may be available) is fact-specific and may depend on documentation, prior enforcement history, and the association’s stated reasons for its actions.

Steps to Take When Facing Selective Enforcement

Step 1: Document Everything - A helpful first step is to document interactions and incidents. Keep emails, letters, and notices from the HOA. Take photographs of the alleged violations and comparable conditions in the community (as appropriate). Documentation can be important in evaluating whether enforcement has been consistent.

Step 2: Review Your Governing Documents - Review your HOA’s CC&Rs (Covenants, Conditions, and Restrictions), bylaws, and any published rules. Understanding these documents can help you identify what the rule requires and what procedures the association must follow.

Step 3: Request Records from the HOA - Homeowners may be entitled to inspect and copy certain “association records” under California law (including provisions in Civil Code Section 5200 and following). A written request may help you obtain records relevant to rulemaking and enforcement. However, some records may be withheld or redacted due to privacy and statutory limitations (for example, certain owner discipline and enforcement records).

Step 4: Attempt Informal Resolution - Before escalating a dispute, consider attempting to resolve the issue informally. Homeowners can request an Informal Dispute Resolution (IDR) process under the Davis-Stirling Act. Presenting your concerns and documentation in a focused way can also help create a clear record of the association’s response.

Step 5: Consider Seeking Legal Advice - If informal efforts do not resolve the issue, some homeowners choose to consult with an attorney experienced in California HOA law to better understand the statutes, the governing documents, and potential options.

Step 6: Consider Next Procedural Steps - If the issue persists, possible next steps (depending on the facts) may include further internal dispute resolution efforts, alternative dispute resolution, or other formal processes. Any decision to pursue a claim is highly fact-dependent, and available remedies can vary.

Why Proper Documentation Matters

Proper documentation is an important part of evaluating a selective enforcement concern. Detailed records, photographs, and correspondence may help show patterns and timelines. Documentation can also support discussions during IDR or other dispute-resolution processes.

Conclusion

Selective enforcement allegations can create a stressful and unfair-feeling living environment for homeowners. By understanding the role of the HOA’s governing documents and the Davis-Stirling Act, and by focusing on careful documentation and available dispute-resolution processes, homeowners can better evaluate their situation and communicate their concerns.

Bad HOA Podcast Episode Transcript on Selective Enforcement

HOA Attorney & Podcast Host, Luke Carlson, Esq.

All right, Luke Carlson of Ellis Carlson Law, welcome back to the show. We're thrilled that you're watching. I also have to my right, Marty. Hello.

Podcast Producer & Contributor, Marty Vasquez

Welcome. Thanks.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

And Jenny, welcome back.

Podcast Contributor, Jenny Carlson

Hi.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

So I'm a lawyer of Ellis Carlson Law, and as we've been doing in this series, we're really identifying areas of concern or things that can create serious problems for homeowners. Last week, we did failure to repair, which is a huge topic. I thought that was very helpful.

Podcast Contributor, Jenny Carlson

I think it was.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yeah, it comes up over and over again. Now, we have another topic, which I think causes an equal amount of frustration for owners, which is selective enforcement. So we are going to dive into that today and hopefully, the viewers will get some good insight into this issue.

Podcast Contributor, Jenny Carlson

What is selective enforcement?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Selective enforcement is one of those areas where we see it materialize in a number of different ways. You're a homeowner, living your life, minding your business, and all of a sudden, you're getting notices. Maybe it's because they don't like your shrubs or the color of your house. Your wall is peeling.

Podcast Contributor, Jenny Carlson

Your wall is peeling, yeah.

Podcast Producer & Contributor, Marty Vasquez

That was very specific. Do you care to share?

Podcast Contributor, Jenny Carlson

We'll go into that another time.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yeah, we'll put it aside for now. But then you look at your neighbors and see that they have the same outstanding issue. Their wall is peeling, or their shrubs are all out of whack. You talk to the neighbor and they say, "Yeah, we're not getting any violation notices." You come to realize that you're the only person being singled out. That is selective enforcement, where you're being singled out to the exclusion of others.

Podcast Contributor, Jenny Carlson

Yeah.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

So that is selective enforcement in a nutshell. What do we have next?

Podcast Producer & Contributor, Marty Vasquez

What are some of the legal implications of selective enforcement? I think we did a decent job explaining that it’s really about the lack of consistency and targeting specific individuals.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

When you're looking at selective enforcement, it gets interesting because sometimes there’s a motive behind it. Someone on the board or the board in general doesn’t like you. Going back to our personality types, you have a tyrant or a meddler. In some situations, it may be personal. From a legal perspective, a few things can come up. First and foremost, in California, you have the governing documents. Many associations also have provisions and adopted enforcement policies addressing consistent rule enforcement. The Davis-Stirling Act sets procedural requirements for enforcement and discipline, and inconsistent enforcement can become an issue in disputes depending on the facts.

Podcast Producer & Contributor, Marty Vasquez

And that's in the Davis-Stirling Act, that it has to be equal application?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

The Davis-Stirling Act is often part of the analysis, but you’ll frequently find the equal-application concept in the CC&Rs or in the association’s published enforcement policies.

Podcast Contributor, Jenny Carlson

So an example could be three people have a peeling wall and only one person gets a notice of violation?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Exactly. Another caveat is that the peeling wall is open and obvious.

Podcast Contributor, Jenny Carlson

Correct, but you may share it with a neighbor who also has a peeling wall.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

You may share that wall with a neighbor and their wall is also peeling. It’s something that’s open and obvious in the community. The board may be expected to be aware of conditions it can readily observe. If they enforce only against one owner without a reasonable basis, it can raise questions under the governing documents and enforcement procedures. Another thing to look at in California is the board’s fiduciary obligation.

Podcast Producer & Contributor, Marty Vasquez

So in most situations, do they remove the thought of fiduciary obligation? Are they still in neighbor mode and it irritates them, so they use their power to be tyrannical or meddlesome?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Maybe a meddler has fixated on you and likes to push your buttons through enforcement actions. They call you to a hearing, send you fines and violation notices. Sometimes, they involve the association’s legal counsel in the process.

Podcast Producer & Contributor, Marty Vasquez

That seems very aggressive. How would they do that?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

The association has legal counsel. Many HOA attorneys help manage compliance with the CC&Rs and the Davis-Stirling Act. But in some disputes, communications from counsel can feel one-sided to a homeowner, especially if the information provided to counsel is incomplete or the situation is not fully investigated.

Podcast Contributor, Jenny Carlson

Just because they don't like her.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

That might not be stated openly, but if enforcement is being driven by something other than consistent application of the rules, that’s where the concern comes from. Legally, people often look at governing document compliance, the Davis-Stirling Act’s procedures, fiduciary duties, and—where applicable—whether any other legal protections are implicated. The purpose of the show is to educate viewers experiencing this so they can better describe what they think is happening.

Podcast Contributor, Jenny Carlson

And also know the proper steps to take.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yes, we’ll get to that. Being able to describe the issue clearly is a step in the right direction.

Podcast Producer & Contributor, Marty Vasquez

Using this vocabulary makes people pay attention.

Podcast Contributor, Jenny Carlson

They’re buzzwords. Mentioning the Davis-Stirling Act will make ears perk up.

Podcast Producer & Contributor, Marty Vasquez

They’ll see you’re not messing around anymore.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Right, you become a more informed owner at the table. Instead of saying, "That’s rude, you guys are obnoxious," you say, "This may be inconsistent enforcement and may implicate the governing documents and the Davis-Stirling Act." Clear terminology can help keep the discussion focused.

Podcast Contributor, Jenny Carlson

This is a good life lesson in general. Become knowledgeable, right?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

True, yeah. Unfortunately, as an owner, you’re very emotional. Rightfully so.

Podcast Contributor, Jenny Carlson

Yes, but you have to educate yourself.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

If you can put the emotion aside and look at it clinically, that’s where you get traction.

Podcast Producer & Contributor, Marty Vasquez

It has a lot more teeth.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

It does, yeah.

Podcast Contributor, Jenny Carlson

And if you're familiar with your CC&Rs.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Correct, which I encourage everyone to be.

Podcast Contributor, Jenny Carlson

Absolutely.

Podcast Producer & Contributor, Marty Vasquez

Which is a good tease for our next topic. Let’s go through the legal implications we touched on briefly: breach of fiduciary duty, discrimination claims, violation of governing documents, equitable relief, etc.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Discrimination claims are interesting. Discrimination law is its own area. In California, fair housing and other laws protect certain classes. If someone believes they’re being treated differently based on a legally protected characteristic, that can raise issues beyond HOA governance and may warrant speaking with an attorney familiar with discrimination and fair housing laws.

Podcast Producer & Contributor, Marty Vasquez

It’s part of the law they could be breaking, but you typically don’t handle it.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Correct, we try to stay focused on HOA governance issues.

Podcast Producer & Contributor, Marty Vasquez

We’ve talked about violation of governing documents. The HOA not following governing documents is usually glaring.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

It can be. Talk to me about equitable relief.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

When you look at different forms of relief, courts can provide monetary relief or equitable relief. Equitable relief is non-monetary, like ordering the association to do or not do something. For example, if the HOA isn't maintaining a common area, a court may order the association to perform maintenance. The available relief depends on the claim and the evidence.

Podcast Producer & Contributor, Marty Vasquez

I assume selective enforcement often seeks equitable relief.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Often, the goal is to stop or prevent the challenged conduct.

Podcast Producer & Contributor, Marty Vasquez

Monetary situations arise when they rack up fees or fines.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Attorney’s fees, etc.

Podcast Producer & Contributor, Marty Vasquez

Talk to me about loss of HOA credibility and authority.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

When a board engages in unequal application, it can discredit the HOA in the eyes of the community.

Podcast Contributor, Jenny Carlson

People in associations don't have a degree in HOA. These are volunteers, so this might happen often.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yes, these are volunteers with no credential check. Even intelligent individuals can make mistakes or operate out of self-bias. Education isn’t necessarily an indicator of board performance.

Podcast Producer & Contributor, Marty Vasquez

Sure.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Loss of credibility and authority can spiral, leading to more conflict.

Podcast Contributor, Jenny Carlson

I like this. All right, resolution. This is a good topic. As a homeowner, you perceive selective enforcement. Document everything. It’s one thing to testify; it's another to have emails and evidence.

Podcast Contributor, Jenny Carlson

As a non-lawyer, I think the best reminder is to have everything in a file. Document, save everything, and keep a paper trail.

Podcast Producer & Contributor, Marty Vasquez

Pictures are crucial. If your neighbor has the same issue, take pictures and mark the date.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Or another approach: if appropriate, communicate with neighbors and document what you learn.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Another area is the architectural control committee. If your application for a gazebo or pool is denied repeatedly while others get approved, that can raise selective enforcement concerns. Document it. Knowing your governing documents is owning in an association 101. Understand them even if they’re boring.

Podcast Contributor, Jenny Carlson

Understand documents. Educate yourself.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Education.

Podcast Producer & Contributor, Marty Vasquez

Step one, collect the evidence. Step two, review your CC&Rs and bylaws. Step three, request records if necessary.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Make a document request. You may be entitled to certain documentation as an owner, subject to statutory limits.

Podcast Contributor, Jenny Carlson

If you want to put in a pool and the neighbor was able to, could you request the neighbor’s documentation?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

It depends. Some communities will disclose certain information, but privacy concerns and statutory restrictions may limit what records can be produced.

Podcast Producer & Contributor, Marty Vasquez

Does California law specify that you are entitled to some documentation?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yes, California’s HOA record inspection statutes include Civil Code Section 5200 and following. It’s a useful tool, but it’s also important to understand what is and is not subject to inspection.

Podcast Producer & Contributor, Marty Vasquez

It would be nice to know if Bob down the street got fines too.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Sometimes the best way is to ask Bob.

Podcast Contributor, Jenny Carlson

If you’re a natural meddler, you like to know.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

That’s a meddler homeowner, not a board member.

Podcast Producer & Contributor, Marty Vasquez

Put on your meddler cap as you solve this.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

At some point, you'll sit down and realize you have enough information. If you can work it out with the association without a lawyer, that can be a good outcome.

Podcast Producer & Contributor, Marty Vasquez

Which is the next step, informal contact to solve this.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

California offers informal dispute resolution (IDR). Request IDR with the board. No magic language needed, but clear wording helps. Request informal dispute resolution, state your issue, and ask for meeting times. In an ideal situation, the board rectifies it. With a difficult board, IDR can be frustrating. But even if you think it will fail, it can help build a record.

Podcast Contributor, Jenny Carlson

Do it for documentation purposes.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Go in good faith. If you have a horrible encounter, document it. Follow up with an email to confirm what happened.

Podcast Producer & Contributor, Marty Vasquez

Are they required to keep minutes or record these meetings?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

There are minute requirements for certain meetings, but typically not for IDR. Assume they won’t take notes and put the onus on yourself to document.

Podcast Producer & Contributor, Marty Vasquez

Could you record the meeting?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

If you ask and they agree, yes. In California, recording a confidential communication generally requires the consent of all parties. Attempting IDR may not be a bad idea, even if you think it will fail.

Podcast Producer & Contributor, Marty Vasquez

Which is hiring a lawyer.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Typically, you meet with a lawyer first. Some charge for an initial meeting, and some do not. Bring your documentation. The better organized you are, the easier it is for the lawyer to evaluate the situation.

Podcast Contributor, Jenny Carlson

So a dream client is one with well-documented evidence, taking the emotion out of it.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yes, though I assume clients will be emotional, rightfully so. It's their home. You calibrate the emotion because it’s relevant. The human element is important when presenting the story to a mediator or judge.

Podcast Producer & Contributor, Marty Vasquez

I can’t imagine this starting last week. It’s probably been years.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yes, and you almost become a necessary evil. They don’t want to meet with you, but you’re needed. Empathy is critical.

Podcast Contributor, Jenny Carlson

How much easier is it for you when a client comes with great documentation?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

It can reduce the time needed to understand the facts. We can organize banker boxes of disorganized information, but it takes more time.

Podcast Producer & Contributor, Marty Vasquez

It could take hours to go through that.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Some people don’t want to deal with it and just hand over everything. We handle it, but it takes more time.

Podcast Contributor, Jenny Carlson

Me with taxes.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Most people with taxes. You give it to your CPA and say, "Figure it out."

Podcast Producer & Contributor, Marty Vasquez

So to recap: document the issue, review your CC&Rs, request records if you can, take an informal approach, attempt IDR, and if all fails, talk to a lawyer about next steps.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Exactly.

Podcast Contributor, Jenny Carlson

My favorite part. The Reddit rapid fire. Here we go. It's kind of like a bar exam on air.

Podcast Contributor, Jenny Carlson

I receive friendly reminders and one violation. I asked for pictures, but they say they don’t take pictures. I don’t understand how they are so sure. My next-door neighbor is the president of the HOA and nitpicks my home. I got a letter regarding weeds in flower beds after I remulched my entire yard. I was floored. They couldn’t provide pictures. I got a violation for my eaves not being power-washed. No picture provided. I think it’s the neighbor targeting me because we are young and have kids and dogs.

Podcast Producer & Contributor, Marty Vasquez

President lives next door and seems to be targeting happy families with dogs. Does this happen often?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

I see variations of this. One of the first questions I ask is, "Who’s your neighbor? Are they on the board?" Often, someone on the board is involved.

Podcast Producer & Contributor, Marty Vasquez

They see your stuff regularly.

Podcast Contributor, Jenny Carlson

They have to look at it all day long out their bathroom window.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

They care about what’s around their house. Sometimes people leverage their position on the board to focus enforcement around their immediate area, while ignoring the rest of the community. That can raise selective enforcement concerns. It’s helpful to determine whether other homes in a similar condition are also receiving notices.

Podcast Contributor, Jenny Carlson

Like my eaves are 50% power-washed, but others’ eaves are worse.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Correct. If uncomfortable going door-to-door, request IDR and ask the board to explain the basis for the enforcement and whether enforcement is being handled consistently.

Podcast Producer & Contributor, Marty Vasquez

Do HOAs regularly have people walk around inspecting?

Podcast Contributor, Jenny Carlson

Oh my gosh, yes. My mom’s condominium complex in Mission Viejo has someone with a clipboard every time I go there.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Is she on the board?

Podcast Contributor, Jenny Carlson

100%.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Some associations have people inspecting homes, sometimes with management or volunteers.

Podcast Contributor, Jenny Carlson

That also sounds very personal.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

It’s not necessarily a bad thing. Consistent inspections can reduce selective enforcement concerns if they’re applied uniformly.

Podcast Producer & Contributor, Marty Vasquez

Correct. When it’s selective enforcement, it’s typically just the board president targeting specific homes.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

It can be a single board member, or it can be broader than that. If someone is leveraging their board position to target their neighbors, that’s the concern. Document other homes’ conditions and try to find out whether enforcement is being applied consistently.

Podcast Contributor, Jenny Carlson

What’s our next episode?

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Neighbor disputes. We’ll discuss enforcing against a neighbor violating the CC&Rs and the association’s liability in that dynamic.

Podcast Producer & Contributor, Marty Vasquez

These are always fun.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Yeah, well, Marty, thank you again for being on the show.

Podcast Producer & Contributor, Marty Vasquez

Thanks for having me.

HOA Attorney & Podcast Host, Luke Carlson, Esq.

Excellent questions. And Jenny, thank you. Wonderful questions as always. And guys, thank you so much for watching. If you love the show, please subscribe. Press the button.

Podcast Contributor, Jenny Carlson

My 12-year-old daughter says, "Press the button. Give us a thumbs up."

HOA Attorney & Podcast Host, Luke Carlson, Esq.

All right, thank you.