Has the HOA Waived Future Enforcement?

  An owner of a home in a subdivision governed by an HOA built a detached guest house three years ago. Detached guest houses are prohibited under the CC&Rs. The HOA is now demanding that the guest house be removed. Has the HOA waived its right to enforce the single-structure restriction? If the CC&Rs contain a non-waiver provision, which they often do, the HOA probably can enforce the restriction against the owner. In other words, the HOA can likely have the guest house removed at the owner’s expense.  Upon the recording of the CC&Rs, every owner was at least constructively aware of the restriction before building.  Therefore, the owner took a risk on whether the restriction would or would not be enforced.