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Unenforceable Rules Regs and CC&R’s

I’ve read online that under certain conditions Rules and Regs and CC&R’s may become unenforceable if they are in the documents and ignored for lengths of time. For example, say the HOA had been trimming plants within single-use common area for years. A new board looks over the regs and sees that those were intended to be trimmed by owners, even if in single-use common area. At this point the home changed hands and the owner, now several years into the property and having never been required to trim based on the years of occupation just passed, is suddenly alerted that he or she is now responsible, gets a 30 day advance notice and then if undone, starts receiving violations.

That’s just an example but there are a variety of ways a board can allow leniency and then another board change the “policy”.

Also, on ARC”s, can a homeowner applying for a routine (non-structural) upgrade like a top unit flooring replacement) that otherwise meets federal Housing noise-reduction requirements (and the governing docs contain no specifications other than the owner being required to deal with any noise complaints) be required to sign a Hold-Harmless agreement, without precedent, without prior complaint from an adjacent unit and without it having been required in the past (needs to be verified if/when it was)?

1 Response

  1. DennisL

    Cynthia,
    What you read is incorrect most of the time. Because a board has not enforced a rule for some period of time does not eliminate that rule. They can chose to start the rule with due notice of all homeowners. The issue is fundamentally, are they enforcing the rule fairly and consistently across the community if they are they can do what you described if they are not and only applying the rule selectively they cannot do that.
    The homeowner can contest any violation notice directly to the board in and request a hearing in open session relative to that issue, I would recommend that everyone do that.

    The association cannot do anything relative to rule enforcement that does not exist in writing. If the rule for “hold harmless agreement” what ever they are is not in writing it does not exist and cannot be enforced. Even if the association did create such a rule and documented it their ability to do that depends on the specific language of the CC&R’s.
    Dennis

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