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Barrister
Barrister, Lawyer
Category: Real Estate Law
Satisfied Customers: 37412
Experience:  16 years real estate, Realtor. Landlord 26 years
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I live in North Carolina. We have an HOA which has a

Customer Question

I live in North Carolina. We have an HOA which has a covenant that all garbage receptacles shall be behind screening so as not to be seen from the street or by other neighbors. I have lived here for 16 years and kept my garbage cans at the top of my driveway, which clearly is a violation of the covenants. However, 75% of the neighborhood also does this and has been keeping their garbage cans in plain view of the street. In May, I received a letter from the HOA requesting that I remove my trash cans from view of the street and/or install screening. I admit, I did not take immediate action as I did not see my neighbors complying around me. Upon receipt of the second letter, I moved my trashcans out of view. Since such time, I have had some construction work done on my house and subcontractors dragged the garbage can out into full view again. Apparently, whoever is inspecting the neighborhood must have driven by on that particular day, snapped a picture of it. The HOA now intends to fine me $100 per day if I they catch me again.
I am now preparing for my hearing and I started polling my neighbors about whether they had also received these letters. Of the 75% of our 800 lot neighborhood, I know of only two letters sent. One to me and one to my next door neighbor. Coincidentally, the neighbor on the other side of me, who stores their trash can in the exact same place as I do, did NOT get a letter.
I have asked the HOA for a list of addresses to which violations for this particular covenant had been sent and they have refused to supply the information. Additionally, one of the board members was a good friend of mine, with which I have recently become estranged.
Do I have a case for selective and arbitrary enforcement of CC&Rs. I am actually in agreement with the Covenants and intend to comply with the request for screening, regardless of what my neighbors do, but I also do not want to be in a position that if a subcontractor or one of my daughters friends drags the garbage can out and if a neighbor suddenly wants revenge catches it on film, I have to pay $100!!
I would like to engage a lawyer, but I want to be sure that I can also recoup my legal fees if I have to go to court.
Thanks for your help!
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Barrister replied 1 year ago.

Hello and welcome! My name is ***** ***** I am a licensed attorney whowill try my very best to help with your situation or get you to someone whocan. There may be a slight delay in myresponses as I research statutes or ordinances and type out an answer or reply,but rest assured, I am working on your question.

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Do I have a case for selective and arbitrary enforcement of CC&Rs.

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Based on your comments, it appears as though you are definitely being singled out for disparate treatment, which is a violation of the law and would give you grounds to sue the HOA.

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As for recouping your legal fees, that is going to depend on your Bylaws and if they have the standard clause that says "the prevailing party is entitled to their legal costs".

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But even then, this is a little dicey because technically you are in violation, but you then have a separate claim against them for selective enforcement.

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With that said, a letter from an attorney to them threatening to sue them for this might end up settling the entire matter with a warning instead.

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However, that letter and any legal battle would end up costing more than the $100..

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thanks

Barrister

Customer: replied 1 year ago.
Of course the goal is to solve it amicably. My hearing is next week and I would like to resolve it before then. Should I lay my case out to them or just wait? Really they are separate issues. The purpose of the hearing is to determine if they have the right to fine me for violation. The picture they sent was blurry and impossible to see the trashcan and not date stamped. I'm not sure those on the board would be able to understand that in court this "evidence" would not hold water. I am pretty much at their mercy though because the laws in NC say that all they have to do is hold a hearing and the board decide. Not sure if selective enforcement is a defense in that matter... I could just argue faulty evidence but it may not stop them from ruling against me.
Expert:  Barrister replied 1 year ago.

I think I would kind of merge them together in a "waiver" or "equitable estoppel" argument where if they have never enforced the rule, then they have effectively given up their right to do so. And especially if they are simply choosing to selectively enforce it against you in a discriminatory manner. In order for the rules to be applied, they must be applied equally to everyone. So unless they want to appoint a "trash can patrol" then they either need to revise the rule, throw it out, or start dinging everyone equally.

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I would then focus on the selective enforcement idea in that you would hate to have to pursue this in court but you have clear and convincing evidence that the Board is not enforcing violations uniformly with no reasonable explanation as to why not..

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And yes, hammer the evidence...if they are not date stamped, then that could have been from years ago or even the same day, just a later time so there was only one incident...

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thanks

Barrister

Customer: replied 1 year ago.
Should I wait until the hearing to bring it up?
Expert:  Barrister replied 1 year ago.

I would because you can't really argue your case however many times that there are Board members... But honestly, in most of these situations, unless your HOA is a real bunch of jerks, a "hat in hand" approach is much more likely to resolve this than an adversarial one.

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So if it was me, I would apologize for the mistake, say that someone in the house accidentally left it out the second time because they didn't know about the rule, you have gone over it with everyone, and it won't happen again...

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Kind of a "catch more flies with honey than vinegar" approach...

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thanks

Barrister

Customer: replied 1 year ago.
You have been a huge help!! Well worth the 45$! Thank you for it!
Expert:  Barrister replied 1 year ago.

You are very welcome. Happy to help any time..

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All the best to you and yours..

Barrister

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