HOA CCRs violations... statute of limitations... theory of laches...

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You don't need to live in a condo to be subjected to homeowner association rules - CCRs (codes, covenants, and restrictions).  And it should come as no surprise that few people bother to read through the voluminous documents.  So then, what happens when violations are discovered and the current board wants to rectify the violations?

Instead of being completely abstract (or obtuse as I am want to be), here is a situation... my situation.

Approximately 8 years ago, my wife and I were looking out at our very small CA back yard when my wife commented that there was something wrong, but she just couldn't put her finger on it.  The moment she said this, I knew exactly what the problem was, it was our back fence.  It was one of those wrought iron fences with vertical bars about every six inches and horizontal stabilizing bars top and bottom.  You see, the upper bar must have been right at about 5 1/2 feet high - directly in the middle of your line of sight.  My wife went out to show houses and when she got back three hours later, I had completely removed the fence.  And WOW, what a difference!  The yard looked great.  It really opened it up.  (I feel sorry for the lions at the zoo now.)

A few months ago, we decided to do some landscaping and submitted plans to the HOA board / architectural committee who, among other things, did not like the fact that our fence had been removed and they demanded we restore it immediately.  The CCRs state that the fence (and every house has one), must remain.  A couple of other salient facts.  1. We live in a gated community.  2. The fences are only at the backs of the homes. 3. The layout is such that no one can effectively even see the back of our house.  4. We have a hillside behind the home for which the HOA is responsible (the point being that if they were dutifully caring for the property, our lack of a fence has been readily apparent for 8 years). 

Our thought was, are you nuts?  The fence has been down for 8 years.  No one has cared before now.  And other than throwing their weight around as the high and mighty board, no one can even see the house and no one else really cares, so let's get real.  Their idea of getting real is to threaten us with fines, having them do the work for us (at non-competitive prices - of course), or even going to far as implying they would sue us with the expectation we will also have to pay their attorney fees as they expect us to lose.

I'm no attorney, and I'm sure the laws vary by state, but here is what I think I know for California.

I. A statute of limitations exists.  In California, it is 4-years for written contracts, and 2-years for oral contracts.  I read somewhere that it is 5-years for CCR violations, and that the five year period begins from the time the person seeking enforcement discovered or should have discovered the violation.  The few-courses-short of a brain surgeon declared it was the first he knew of it and that is all that matters to him.  He doesn't seem to grasp that the past president of the board DID know about it and that there was constructive notice and that the board _should_have_ known about it 8-years ago.

II. Theory (or Doctrine) of Laches.  My understanding is that this is similar to a statute of limitations except that it is not statutory.  This would be a good place for a real attorney to comment - but the key point is that if you've been sleeping on your rights and now decide to assert them, I am disadvantaged to defend because witnesses and other things necessary to defend myself may be less available.  As a perfect demonstration that point is that the then president of the HOA who knew about our fence removal has snice died and his widow has moved out of the neighborhood.  As such, I believe the court weighs more heavily for my side.

For myself, that fence is not going back in, even if I have to go defend myself in court.  I would certainly appreciate a few tips from anyone out there who has had to deal with such a situation or has other insight.

The bottom line for everyone else is that if your neighborhood is obligated to CCRs and someone has violated them (in a way that actually matters), make sure your board takes action immediately before it loses its rights to enforce them.

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Rainmaker
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Lynda Eisenmann
Preferred Home Brokers - Brea, CA
Broker-Owner,CRS,CDPE,GRI,SRES, Brea,CA, Orange Co

Hi Robert,

I found your post of extreme interest.

I'd love to know (though I've never, ever heard) if "read somewhere that it is 5-years for CCR violations, and that the five year period begins from the time the person seeking enforcement discovered or should have discovered the violation." is factual or not? I'll keep tuned in  to see if anyone else has an opinion.

Btw, I'm also in CA and last week I discovered CC&R's were identified on an early 1960's home with no HOA, and no mention on the TDS. This is the 2nd time I've seen it in older homes, last one a 1930's. Were some applicable...ie how may chickens/pigeons one could have? Absolutey not, yet reading more, there were other issues like drainage and earth movement (a slight hillside area) which could be. Reading on in this case, some issues "sunseted" after a period of time, yet not all.

Not that I think this specifically deals with your issue, yet it does relate to the enforcement and duration of CC&R's. In your case, I think I might possibly look for other potential violations in your area...seems like "selective enforcement" if it exists could be more of a case.

 

Jul 21, 2010 12:29 AM #1
Rainmaker
101,614
Robert T. Boyer
FHA Loan, VA Loan, Jumbo Loan,FHA Loans,VA Loans,Jumbo Loans - La Jolla, CA
San Diego Real Estate & Mortgage Loans, Ph.D. | VA Home Loan

Thanks.  No, selective enforcement won't work as we are the only ones who ever removed our fence.  Here is some information from two posts I had dug up earlier.

http://www.ahrc.com/ubbthreads/showflat.php?Cat=&Board=UBB10&Number=3004&Forum=All_Forums&Words=Statute%20of%20limitations&Match=Entire%20Phrase&Searchpage=0&Limit=25&Old=allposts&Main=2995&Search=true#Post3004

The statute of limitations for violation of a CC&R provision is 5 years. CCP §336(b)"

Statute of Limitations on Enforcement of CC&R Violations - (Effective January 1, 2001)

Assembly Bill 707 was intended to clarify which statutes of limitations apply to actions based on a breach of the recorded covenants contained in CC&Rs. Currently, there are three different limitations periods (3 years, 4 years and 5 years) that can govern these types of actions. This legislation adds California Civil Code Section 784 to clarify that the term “restriction†includes covenants contained in CC&Rs. This bill also amends California Code of Civil Procedure Section 336 to apply a five year statute of limitations to an action for a violation of a _restriction_ as that term is now defined in Civil Code Section 784.

Jul 21, 2010 01:34 AM #2
Rainmaker
536,478
Lynda Eisenmann
Preferred Home Brokers - Brea, CA
Broker-Owner,CRS,CDPE,GRI,SRES, Brea,CA, Orange Co

Hi there,

Thanks so much for the info, I'll be following up on your links.

Btw, what I was referring to as "selective" enforcement is that it seems like some HOA's enforce some things while overlooking others. 

Jul 21, 2010 12:17 PM #3
Anonymous
tim

to continue the thought....

1.  can cc&rs live indefinitely if no one objects to them?.

2. suppose the CC&Rs state that they are valid for , say, 10 years and automatically renew every 10 years unless amended etc by 50+% of the home owners in the subdivision?

3.  what about restrictions called out in a Corporate Grant Deed?  don't they  run with the property essentially forever?

many tks, tim

Dec 30, 2010 04:30 PM #4
Rainmaker
101,614
Robert T. Boyer
FHA Loan, VA Loan, Jumbo Loan,FHA Loans,VA Loans,Jumbo Loans - La Jolla, CA
San Diego Real Estate & Mortgage Loans, Ph.D. | VA Home Loan

Tim, I can only comment on my experience and observations.  From what I've seen, the CC&Rs can live, independent of any active association, but the ones I've seen have a definite expiration date unless renewed.  I forget the percentage of owners that were needed to renew, I can't recall whether or not it was a super-majority or simple-majority

However, I do believe restrictions placed into the grant deed to run with the property forever.

Dec 31, 2010 01:33 PM #5
Anonymous
tim

many thanks!

Dec 31, 2010 02:27 PM #6
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Rainmaker
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Robert T. Boyer

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