Question: In our Peoria neighborhood the covenants, conditions, and restrictions (“CC&R’s”) prohibit basketball goals in the front yard. Due to many foreclosures & mortgage defaults in our Peoria neighborhood our homeowner’s association (“HOA”) has no funds to enforce the CC&R’s. Two of our neighbors on our street have now installed basketball goals in their front yard, and at a recent barbeque in our community park, several other neighbors said that they were planning on installing basketball goals in their front yards. We are an elderly couple, and we do not want children playing basketball in the streets. If the HOA will not enforce the CC&R’s restricting basketball goals in the front yard, can we as individual homeowners enforce the CC&R’s?
Answer: The general rule is that, if a specific provision in the CC&R’s is not enforced, this specific provision will be deemed invalid. In fact, if there are numerous provisions in the CC&R’s not being enforced, the entire CC&R’s could be deemed abandoned. If the HOA will not enforce the CC&R’s for whatever reason, e.g., lack of funds, individual homeowners under the CC&R’s are generally entitled to enforce the CC&R’s. Therefore, you should notify the residents in your Peoria neighborhood that you intend to enforce the CC&R’s prohibiting basketball goals in the front yard, and you should contact an attorney to seek injunctive relief in court requiring the two homeowners that have installed basketball goals in their front yard to remove those basketball goals.