Consistent and Selective Enforcement in HOA

[Pedas2]

What is the name of your state (only U.S. law)? Arizona

I am on the Architectural Committee of my HOA and recently a homeowner submitted an application for a re-roofing project that needed committee approval. The homeowner requested approval the same day of the application claiming that he can't afford to wait. There was rain in the forecast in the few days after submittal of application and it did occur. The committee felt a little pressured since normally we have 30 days to review an application. The contractor hired or represented by the homeowner came over with the form and was a little vague and gave me an evasive answer when asked if he had current copy of general liability and workers compensation insurance, since the rules/guidelines of our HOA require the submission of them before work begins. The contractor indicated he would provide me a copy of them but in the end never did. With subsequent emails that day from the homeowner encouraging quick approval before rainy reason, the committee approved the homeowner's application and the re-roofing project was completed.


Suppose this same contractor in the future representing another homeowner for the same type of or different project comes before the committee, this time with no apparent homeowner sense of urgency. Should the committee ask the contractor again for a copy of his general liability and worker's compensation insurance policies and insist they be presented before work begins? I do not know whether or not this contractor has insurance but suppose he doesn't and uses the argument "well you allowed me to work last time, why not this time?" Must the committee allow him to do work here in the future because we somehow let him slide the first time? Would it be considered selective enforcement if we deny him in the future? What about a different contractor who might not have insurance?

If an HOA rule is not enforced and homeowners find out about it, is that rule unenforceable then or must the HOA continue on enforcing it and trying to be more consistent about it?

 

[festival]

Many governing documents of HOAs contain a provision that failure to enforce a provision does not constitute a waiver of the right to enforce the provision in the future. Can you find that wording in your documents?

 

[Pedas2]

Many governing documents of HOAs contain a provision that failure to enforce a provision does not constitute a waiver of the right to enforce the provision in the future. Can you find that wording in your documents?

The only thing I could find that's close is the following sentence. "Any right or remedy provided for in this Declaration shall not be deemed to have been waived by any act or omission...."


Is this close enough?

 

[OHRoadwarrior]

This is the reason they sell blue tarps, to cover leaky roofs, while the paperwork gets processed. Issue a temp authorization.

 

[festival]

The situation you described in the original post is just a single incident with a good reason for your exception to the usual rule, and certainly does not establish a pattern of selective enforcement. Plus the wording you found. I'm an administrator and not a lawyer, but I'd say there is no basis to not apply your rules (e.g., require insurance) in the future. More importantly, you have a duty to apply the rules.

This is from St John's Law Review:
A successful claim of selective enforcement will depend
largely on the specific facts of the case. In many instances, however,
the association is given the benefit of the doubt so long as it
can assert a valid reason for any disparity in application.