Typically, owners buy in planned communities or common interest developments because they believe the CC&Rs will help assure quality and consistency in the neighborhood or complex, which will preserve property values. Of course, this will only be true if the CC&R’s are enforced. Most all CC&Rs or rules and regulations require that an owner obtain prior written approval of the Board or Architectural Committee for improvements or changes to the individual homes or units. Changes, such as upgrading windows, doors, lighting fixtures, and fencing abutting the common area, require approval of the Architectural Committee.
However, all too often, an owner will make a change without Architectural Committee approval. We have all seen the odd greenhouse window or its equivalent, in a community which specifically disallows greenhouse windows. There are those who believe the old adage that “it is easier to ask forgiveness than permission,” or perhaps word is out in the community that the CC&R’s are rarely enforced by the Board. Even when Architectural Committee approval is obtained, many times the completed work does not turn out to be in compliance with the submitted plans or the designs which have been agreed upon. Does the Board have any systems in place to follow up after the construction is completed, other than waiting for a neighbor to complain?
Efforts to bring an owner’s unapproved change(s) into compliance may be time-consuming. Correspondence back and forth between the owner and the Board or its representatives takes time. And, as meetings of the Board and/or the Architectural Committee are necessary to the decision-making, the Board and Architectural Committee processes can contribute to the amount of time it takes to resolve the matter.
Unfortunately, some owners will attempt to delay bringing a change(s) into compliance. Some simply refuse to comply with the rules. When this occurs, the Board must decide if and when to require compliance and enforce the CC&Rs or regulations. Often the Board hesitates to go to the trouble of enforcing compliance. The Association may even decide to let the matter go for a time because they don’t want to upset the owner, or they want to allow a cooling off period and time for the owner’s attitudes and/or positions to change. Whether the Association is avoiding legal costs or decides to allow time for attitudes and/or positions to change, there is an important caveat. The Board can wait so long that its enforcement of compliance with the CC&Rs will become impossible!
How long can the Board delay, and still be able to compel the owner to comply with the CC&Rs? The Association must file its lawsuit to enforce either the CC&Rs or rules and regulations within less than five (5) years after the violation occurred.
California Code of Civil Procedure, section 336, subdivision (b) provides a five year statute of limitations for “[a]n action for violation of a restriction, as defined in Section 784 of the Civil Code.” Civil Code section 784 provides that a restriction “means a limitation on or provision affecting, the use of real property in a deed, declaration, or other instrument, whether in the form of a covenant, equitable servitude, condition subsequent, negative easement, or other form of restriction.” (Emphasis added.) The restriction need not be recorded. Therefore, the five (5) year statute of limitations also applies to rules and regulations of an Association. Pacific Hill Homeowners Association v. Prun (2008) 160 Cal.App. 4th 1557.
The Association should remember that when an owner and the Board cannot resolve the violation of the CC&Rs or the rules and regulations, the Association must offer alternative dispute resolution before filing an action to attempt to enforce the CC&Rs (CC §§1369.520, 1369.530.) Civil Code section 1369.550(a) provides that if a request for resolution is served before the running of the statute of limitations, the statute is tolled for the 30 days allowed for the party receiving the request for alternative dispute resolution to respond. Further, if the request is accepted, the statute is tolled for the time necessary to complete the alternative dispute resolution. (CC §1369.550(b).) Alternative dispute resolution is to be completed within 90 days, but the parties may extend the time by written stipulation. (CC §1369.540.) Thus, the process of alternative dispute resolution to resolve the failure to comply with the CC&Rs or R&Rs may extend or toll the time to file an action.
The five (5) year statute of limitation starts or begins to run “from the time the person seeking to enforce the restriction discovered, or through the exercise of reasonable diligence, should have discovered the violation.” (CCP §336.) If the change is in a location not readily visible, it may go unnoticed and unreported to the Architectural Committee or the Board. It is likely not an excuse that the violation happens to be located in a neighborhood where none of the directors live. Therefore, the Board and Association members should be watchful for violations which it “should have discovered”. The Board has a duty to assure that the Association does not wait too long to begin the enforcement process and to file suit.
Once a Board allows a violation to exist without enforcing the CC&R’s for so long that it loses the right to enforce the CC&R’s due to the 5 year statute of limitations, it becomes very difficult to enforce similar violations made by other owners.
Although the Board may decide to jump on the new violations more diligently, the owner who is subject to the enforcement can now point to the existence of the other neighbor’s uncorrected violation. In enforcing CC&R’s, Courts can and do consider not only the wording of the CC&R’s, but the past history of how the documents have been interpreted, including whether restrictions have been evenly enforced. It is easy to see how “letting things go” can lead to a snowball effect. Greenhouse windows, anyone?