HOA Retains Authority Even if it has Been Lax on Enforcement

  Question:  We live in a gated community in Chandler.  There are covenants, conditions, and restrictions (“CC&Rs”) that should be enforced by our homeowners association.  Due to the economy and numerous foreclosures in our gated community, there has been a shortage of funds in the bank account of our homeowners association.  The result is that the swimming pool and other common areas have not been properly maintained, and violations by individual homeowners of the CC&Rs have not been enforced for years.  A new board of directors and a new property management company have recently done a wonderful job in correcting the maintenance problems with the swimming pool and other common areas.    There are still major violations of the CC&Rs such as homes painted with an unapproved color, and minor violations of the CC&Rs such as flower pots at the front door and weird porch light fixtures.  Has enforcement of the CC&Rs been waived because these violations have gone on for years?  Even if these violations by existing homeowners have been “grandfathered,” can the CC&Rs be enforced against new homeowners?

  Answer: CC&Rs typically have a non-waiver provision, which is enforceable under Arizona law.  A non-waiver provision provides that a failure by the HOA to enforce a restriction of the CC&Rs in the past should not waive the right to enforce the restriction in the future.  For example, if the HOA fails for years to enforce a paint color or landscaping CC&R, the HOA should still be able to enforce this CC&R against both existing and new homeowners.