Question: We are on the board of directors for our Sunnyslope community of 80 homes. Every time we read your column we get confused as to when enforcement of a CC&R has been waived by an HOA. To go to the example you used, if a CC&R prohibits basketball goals in the front yard, but this CC&R prohibiting basketball goals in the front yard has never been enforced, and there are numerous basketball goals in front yards today, can we now enforce the CC&R to prohibit an owner of the home from installing a basketball goal in their front yard?
Answer: The Arizona Court of Appeals has rendered several decisions in this area of selective enforcement of a CC&R after the CC&R has not been enforced in the past. The result of these decisions is that the law today in this area is analogous to the game “rock, paper, scissors,” as follows: If the CC&R prohibition against basketball goals in the front yard has not been enforced for years, the HOA cannot now selectively enforce this CC&R, unless the CC&Rs have a non-waiver clause specifically saying lack of enforcement does not waive future enforcement of a CC&R, unless there has been a complete abandonment of the CC&Rs, e.g., there has never been enforcement of any of the CC&Rs in the last 30 years.