My husband and I are being sued by our HOA for refusing to remove a garden arbor. Our community's architectural guidelines do not state that arbors are prohibited and other homeowners have erected similar structures with no legal action by the HOA. The HOA may not selectively enforce community rules against particular homeowners. Do we have a case if we can prove that the HOA has unequally enforced the community rules?
1 Answer from Attorneys
I have litigated many HOA/condo cases over the years usually on the side of the homeowner. For many years, I was general counsel for the Maryland Homeowner's Association, a group dedicated to advocating for the rights of citizens who reside in common ownership communities.
The fact of the matter is that you certainly CAN prevail if you can prove selective enforcement, and possibly by other legal theories and means as well.
However, one thing to keep gravely in mind is that your association is almost certainly entitled via its governing documents to collect attorneys fees and costs for all efforts it makes to "enforce" the HOA/condo documents. This can make legal battles with your association risky -- b/c if you don't prevail, you can be faced not only with having to remove the arbor at great expense, but also paying the association's attorneys' fees and costs (which could be very very high).
If you don't prevail and the association wins, it can pursue the costs of its defense by means of filing separate lawsuit and/or by placing a lien on your property and then, if there is equity, forcing a sale.
i have a whole bunch of questions about your circumstances and possible actions to take. Feel free to contact me if you want to have a conversation.