#5544-O, Barrett v. Normandy Hills Homeowners Association (September 20, 2002) (Panel: Hitchens, Leeds, Price)

The homeowner (HO) complained to the Commission that his homeowners association (HOA) was discriminating against him when it enforced its rules, that it was not holding annual meetings as required, and that it was not giving proper notice of the meetings that it did hold.The HOA denied the charges of inconsistent rule enforcement but admitted it was not holding regular meetings.

The complaint was filed September 25, 2001 and the public hearing was set for May 15, 2002.A week before the public hearing the HOA asked that it be postponed because the property manager had a schedule conflict.The hearing panel denied the request for lack of good cause, noting that the hearing had been scheduled for several months and that the HOA's board of directors could be represented by board members instead of by the property manager.

At the hearing, the HOA did not send any representatives at all.The panel delayed the start of the hearing by 30 minutes to allow more time for a representative to appear.Because the record showed that the HOA had notice of the hearing, the panel decided to proceed with the hearing in the absence of the HOA.

The HO's evidence, as presented at the hearing, showed that in July, 2000, the HOA had given him a warning that there had been complaints about the noise that his motorcycle caused; however, the HOA took no further action after issuing that warning.The HO also produced evidence of conditions at other units which showed that those units were in violation of the architectural rules, and he argued that this proved that the HOA was enforcing rules against him but not against other members; however the documents previously submitted by the HOA did show that it had sent numerous notices of architectural violations in the past years.The evidence also showed that the HOA did not hold annual meetings regularly, although it did hold one in 2002, and the evidence further showed that the meetings were not being properly noticed to the membership.

The panel ruled that it had no jurisdiction to rule on whether the HO violated the noise regulations, because all the HOA had done was to issue a warning, and it never voted to take any action based on the alleged noise violation.The panel further ruled that there was insufficient evidence of selective rule enforcement, because the examples cited by the HO involved architectural violations, which were not similar to the noise complaint made against him; moreover the panel was reluctant to make rulings on which of the units was in violation of the architectural rules, especially when the owners of such units were not parties to this dispute.

The panel did find that the HOA was in violation of its rules and state law by not holding annual meetings and by not giving proper advance notice.The panel ordered the HOA to comply with its rules, and to report to the Commission for the next two years on its compliance with the order.