Robot enforcers you are not.

I have received three interesting calls on one subject in the last week. Board members ask: Are we negligent if we do not enforce all rules strictly? This message seems to be "out there" for discussion. The bottom line, in my view, is no.

The idea that board members must quickly enforce every perceived rule violation comes from the general notion that rules can be waived or abandoned, and that unequal treatment of residents will rarely be tolerated by a court. These ideas are well and true. But waiver and abandonment do not come easily and certainly not when the Board has a good-faith basis for acting differently in different cases. Unequal treatment may be okay if the facts are different, or even if times change.

In other words, you were elected to use judgment, not to be robots.

If you have a pet size rule, say 15", do you want to run around with a ruler and prosecute 16" pet owners? Maybe if the pet is a nuisance. But if not, you may decide that is not your role, as a Board, to chase this individual. If a neighbor takes offense, remember that the neighbor also can take the "offender" to court. A decision not to enforce one rule is never a waiver of a different rule. You do have latitude. Prosecutors sometimes take a pass...so can you.

Your job is complicated, with no easy black and white answers, because life is complicated. (That's why you get the big bucks.) You have to use your judgment and make decisions which protect the covenants but at the same time honor the homeowners autonomy when possible, putting a human face on a regulatory scheme. Not easy. The good thing is that the courts, when asked to second-guess you, will usually back you up if you use your judgment.

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