COLUMN: Selective enforcement does not negate documents

Q. You have stated that equal enforcement of covenants is mandatory for a rule to be valid. If it's not equal enforcement, it's selective enforcement. If it's selective enforcement, is it discriminatory and does it violate one's rights under federal law?

Also, if a ban on parking oversized vehicles in driveways is selectively enforced, does that make the covenants invalid?

A. State law requires that rules be uniformly enforced on all units' owners. Any rule that is not uniformly enforced may not be enforced against any owner. If an association did not uniformly enforce a parking rule, for example, the law does not say that the rule is invalid, it just states that the board cannot enforce that rule (through fines or suspension of use privileges, as in the use of recreational facilities) against homeowners.

Second, this law does not negate other rules and regulations in the governing documents. In addition, since directors change within an association through an election process, if a new board is in control, they could enforce all of the rules, including the parking rule, as long as they begin to apply the rule consistently on all owners under the same circumstances. This even applies to directors who started selective enforcement and then realized their mistake.

You ask if selective enforcement is discriminatory. To prove that enforcement is discriminatory, you would have to prove that a protected class is being targeted, for example, the board is only sending violation letters to people who are black, Hispanic, or physically or mentally challenged. Then federal laws pertaining to Fair Housing law could possibly be applied against the board.

Q. When I moved into my home, the covenants and community well agreement indicated that the four lots on the cul-de-sac were to be equal participants in the water charges and capital account set up for repairs and costs. Side deals were cut. One owner bought two lots, but only contributed the funds for one, leaving a deficit in the capital account of $1,200.

On the day I moved in, I was asked to pay $500 for a new pump due to a lack of funds in the capital account. I was also asked to pay more than one-third of the water costs. There are three homes here and one empty lot full of weeds. One house has never been landscaped, although required by the covenants, and that owner feels he does not have to pay one-third of the monthly water bill.

I decided to pay one-third of the water bill and not contribute to the capital account until I found out if the other owners were paying. Two liens have been recorded on my home with what I believe are incorrect amounts. My house is for sale. The treasurer's books have never been provided to me for review, despite my requests, and there has been no meeting to discuss this matter.

The treasurer just sold his home and designated his friend, the neighbor that never landscaped, as the new treasurer. There was no vote, and I was never included in the decision.

How can I get the liens removed and the amounts corrected? I acknowledge that I owe into the capital account for the months I withheld, but I do not owe more than one-third of the water bill and they are including those costs in the lien along with another cost that I know nothing about.

A. First, you can file a complaint with the ombudsman's office that the covenants are not being enforced (landscaping) and that there appears to be an inequity of dues and capital contributions being paid by the property owners.

As for the liens, do not play any games as you can lose your home if you do not take action. Contact an attorney to protect your rights. The attorney can draft a demand letter informing the treasurer that you want a breakdown of the amount owed per their records. In addition, the attorney can bring action against the association to prevent the treasurer from enforcing the lien until the issue is resolved. Or, you could pay now and seek repayment through the legal system.

Questions for Barbara Holland may be sent to Association Q. & A., P.O. Box 7440, Las Vegas, NV 89125. Her fax number is 385-3759.

Barbara Holland, Certified Property Manager, is president and co-owner of H&L Realty and Management Co. She is a member of the Institute of Real Estate Management and is the author of two books on the subject. Holland is a past president of the Greater Las Vegas Association of Realtors.

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