Failure to Enforce

An association has the duty to enforce the restrictions set forth in its CC&Rs. When it fails to do so, “a homeowner can sue the association for damages and an injunction to compel the association to enforce the provisions of the [CC&Rs].” (Posey v. Leavitt (1991) 229 Cal.App.3d 1236, 1246.) However, an association’s enforcement duty does not necessarily require its board of directors to litigate every violation of the association’s governing documents; the board is granted some discretion in determining whether or not to litigate any particular violation. (See “Duty to Enforce.”)

Relinquishment of Enforcement Rights
If an association’s board fails or refuses to enforce the restrictions, the association may ultimately lose its right and ability to enforce the restrictions based upon the following:

• Statute of Limitations – The statute of limitations for a violation of a restriction is five (5) years from the time the association “discovered or, through the exercise of reasonable diligence, should have discovered the violation.” (Code. Civ. Pro § 336(b).) The term “restriction” in this respect does not mean only those restrictions which are recorded in the CC&Rs; it also includes unrecorded restrictions such as architectural standards. (Pacific Hills HOA v. Prun (2008) 81 Cal.App.4th 1557, 1563-1564.)
• Laches – Laches is an equitable defense that is used against persons who are unjustifiably slow to exercise a right or claim. The defense of laches could be used to defeat an association’s enforcement action if an association unreasonably delays in exercising its enforcement rights and that delay results in prejudice to the violating homeowner. (Pacific Hills, at 431.)
• Waiver – “The right to enforce a restrictive covenant may be deemed generally waived when there are ‘a sufficient number of waivers so that the purpose of the general plan is undermined,’ in other words, when ‘substantially all of the landowners have acquiesced in a violation so as to indicate an abandonment.’” (Alfaro v. Community Housing Improvement System & Planning Assn. (2009) 171 Cal.App.4th 1356, 1380.)

Related Topics

• Standing to Litigate
• Duty to Enforce

Related Statutes

• Code of Civil Procedure Section 336. Violation of Restrictions; Statute of Limitations.
• Civil Code Section 5975. Enforcement of Governing Documents; Attorney’s Fees.

Related Case Law

• Posey v. Leavitt
  (1991) 229 Cal.App.3d 1236
  [Restrictions; Duty to Enforce] A homeowner has the right to sue the HOA to compel the HOA to uphold its duty to enforce the restrictions.
• Duffey v. Superior Court
  (1992) 3 Cal.App.4th 425
  [Declaration; Enforcement] HOAs may file declaratory relief actions for an authoritative interpretation of the governing documents; An owner need not be a defendant in any lawsuit brought by a HOA to discharge its own duty to enforce the CC&Rs simply because that owner complains about a neighbor’s proposed construction.
• Pacific Hills Homeowners Association v. Prun
  (2008) 160 Cal.App.4th 1557
  [Architectural Control; Statute of Limitations] The 5 year statute of limitations under Code Civ. Pro. § 336 applies to both recorded restrictions as well as unrecorded restrictions such as architectural guidelines.
• Beehan v. Lido Isle Community Association
  (1977) 70 Cal.App.3d 858
  [Enforcement; Discretion to Litigation] A HOA’s Board of Directors may in its discretion decline to take legal action to enforce a perceived violation of the governing documents.

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