HOA CCRs violations... statute of limitations... theory of laches...

You don't need to live in a condo to be subjected to homeowner association rules - CCRs (codes, covenants, and restrictions).  And it should come as no surprise that few people bother to read through the voluminous documents.  So then, what happens when violations are discovered and the current board wants to rectify the violations?

Instead of being completely abstract (or obtuse as I am want to be), here is a situation... my situation.

Approximately 8 years ago, my wife and I were looking out at our very small CA back yard when my wife commented that there was something wrong, but she just couldn't put her finger on it.  The moment she said this, I knew exactly what the problem was, it was our back fence.  It was one of those wrought iron fences with vertical bars about every six inches and horizontal stabilizing bars top and bottom.  You see, the upper bar must have been right at about 5 1/2 feet high - directly in the middle of your line of sight.  My wife went out to show houses and when she got back three hours later, I had completely removed the fence.  And WOW, what a difference!  The yard looked great.  It really opened it up.  (I feel sorry for the lions at the zoo now.)

A few months ago, we decided to do some landscaping and submitted plans to the HOA board / architectural committee who, among other things, did not like the fact that our fence had been removed and they demanded we restore it immediately.  The CCRs state that the fence (and every house has one), must remain.  A couple of other salient facts.  1. We live in a gated community.  2. The fences are only at the backs of the homes. 3. The layout is such that no one can effectively even see the back of our house.  4. We have a hillside behind the home for which the HOA is responsible (the point being that if they were dutifully caring for the property, our lack of a fence has been readily apparent for 8 years). 

Our thought was, are you nuts?  The fence has been down for 8 years.  No one has cared before now.  And other than throwing their weight around as the high and mighty board, no one can even see the house and no one else really cares, so let's get real.  Their idea of getting real is to threaten us with fines, having them do the work for us (at non-competitive prices - of course), or even going to far as implying they would sue us with the expectation we will also have to pay their attorney fees as they expect us to lose.

I'm no attorney, and I'm sure the laws vary by state, but here is what I think I know for California.

I. A statute of limitations exists.  In California, it is 4-years for written contracts, and 2-years for oral contracts.  I read somewhere that it is 5-years for CCR violations, and that the five year period begins from the time the person seeking enforcement discovered or should have discovered the violation.  The few-courses-short of a brain surgeon declared it was the first he knew of it and that is all that matters to him.  He doesn't seem to grasp that the past president of the board DID know about it and that there was constructive notice and that the board _should_have_ known about it 8-years ago.

II. Theory (or Doctrine) of Laches.  My understanding is that this is similar to a statute of limitations except that it is not statutory.  This would be a good place for a real attorney to comment - but the key point is that if you've been sleeping on your rights and now decide to assert them, I am disadvantaged to defend because witnesses and other things necessary to defend myself may be less available.  As a perfect demonstration that point is that the then president of the HOA who knew about our fence removal has snice died and his widow has moved out of the neighborhood.  As such, I believe the court weighs more heavily for my side.

For myself, that fence is not going back in, even if I have to go defend myself in court.  I would certainly appreciate a few tips from anyone out there who has had to deal with such a situation or has other insight.

The bottom line for everyone else is that if your neighborhood is obligated to CCRs and someone has violated them (in a way that actually matters), make sure your board takes action immediately before it loses its rights to enforce them.

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Robert T. Boyer, Ph.D. Loan Originator - NMLS #288732 (858) 442-1322 Robert.Boyer@WJBradley.com W J Bradley Mortgage Capital Corp. Co-Founder & CMO FinestExpert.com, investment property search engine for serious real estate investing. Find pre-analyzed foreclosures and homes for sale based on your financial criteria. Developing REO Bulk Sales tools and Martial Arts Equipment store     Add as Associate

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