HOA Does Not Waive CC&R Enforcement for Past Non-Enforcement
Question: One of the problems in our North Phoenix community has been our HOA failing to enforce the CC&Rs that prohibit parking cars on the grass next to the driveway. At our annual meeting last month we elected a new Board of Directors for our HOA. Although several homeowners have consistently parked cars on the grass next to their driveways for many years, the new Board of Directors wants to enforce the CC&Rs prohibiting parking of cars on the grass. Can the new Board of Directors enforce the CC&Rs, or after many years has there been a waiver of the right to enforce the CC&Rs?
Answer: Most CC&Rs have a non-waiver provision. If your CC&Rs have this non-waiver provision, the CC&Rs prohibiting parking on the grass are probably still enforceable despite the failure to enforce prior violations for many years. Even if your CC&Rs do not have a specific non-waiver provision, there is still probably not a waiver. For example, in a Wyoming appellate court decision, there was no waiver of the CC&Rs prohibiting front yard fences even though 20 out of 157 homeowners in the community had front yard fences.
Note: If there has been a total abandonment by the HOA for many years of not enforcing any of the CC&Rs, all of the CC&Rs may no longer be enforceable.