Modifying Enforcement Policies; Avoiding Claims of ‘Selective Enforcement’

One problem that arises in the context of enforcing homeowners association (“HOA”) governing documents pertains to how consistently certain use restrictions in the governing documents are enforced over time. For example, if a HOA has historically failed to enforce a particular restriction, a decision to enforce that restriction against a particular owner may subject the HOA to claims of “selective enforcement” and/or that the HOA’s enforcements efforts are being exercised in an arbitrary and capricious fashion. These claims not only hinder the cost-efficient resolution of disputes, but could significantly undermine the HOA’s enforcement authority.

It is therefore difficult for a HOA’s Board of Directors to modify the HOA’s enforcement policies over time, especially when it desires to enforce a use restriction that was either never enforced or enforced inconsistently by the HOA in the past. However, the recent unpublished opinion in The Villas in Whispering Palms v. Tempkin (Cal. App. 2015) 2015 WL 2395151 (“Villas”) demonstrates that this difficulty may be overcome through providing proper notice to the HOA’s members and through enforcing the restriction consistently thereafter…

Since 1979, the Association in Villas had a restriction in its governing documents that allow for each household within the Association to have only one (1) dog (“Pet Restriction”). In 1998, the Association added a provision to its CC&Rs that allowed for the Board to grant variances from complying with particular use restrictions, including the Pet Restriction. In 2003, the Association’s Board of Directors (“Board”) became aware of numerous households with two (2) dogs. In response, the Board sent out a notification to the Association’s members in 2003 to inform them that the Board had decided to begin enforcing the Pet Restriction, and that households would no longer be allowed more than one (1) dog. Additionally, the Board stated that those households which currently had two (2) dogs would be able to keep them unless one of the dogs became a nuisance to the community; however, once a dog died or was no longer in the home, the owners of the household would not be allowed to replace it. In accordance with this policy, the Board granted every household with two (2) dogs a variance from the Pet Restriction without having them submit a formal request for a variance.

In 2005, the Board became aware that several households still had more than one (1) dog. The Board then conducted a survey to identify those households and to also “poll” the desires of the membership as to whether it wished to retain the Pet Restriction. The survey demonstrated that the majority of the members did wish to retain the Pet Restriction, and also supported the Board’s authority to issue variances for good cause, and pursuant to a formal variance request procedure. The Board ultimately issued variances to four (4) households that each had two (2) dogs, under these specified conditions. The Board then notified the membership that from that point forward the Pet Restriction would be strictly enforced. Thereafter, the Board enforced the Pet Restriction against several homeowners.

Plaintiff Richard Tempkin (“Tempkin”) moved into the Association in 2010 with a friend who had a dog. They brought a second dog into their unit in February of 2011 due to the age of the first dog and their desire to have a period of time in which the first dog could “mentor” the younger dog. In April of 2011, the Association commenced enforcement efforts against Tempkin demanding that he take steps to comply with the Pet Restriction. Tempkin objected to the Association’s efforts. He argued that he should be allowed to obtain a variance, that the Association had waived its ability to enforce the Pet Restriction, and that the Pet Restriction was unreasonable and unenforceable because it had not been enforced in a uniform and fair manner.

The court ultimately found in favor of the Association. The court emphasized the fact that the Association had uniformly enforced the Pet Restriction following the Board’s 2005 notice that it would do so. The court further noted that the Association’s enforcement history prior to that time period did not nullify the Association’s enforcement authority carrying forward, nor should it provide grounds for the court to disregard the judicial deference to which HOA Boards are generally entitled in their decision-making process:

“The fact the board took no action to enforce the rule for many years before 2004 is not an indication of selective or arbitrary enforcement in view of evidence that the board investigated the community’s opinion and reassessed its desire for the pet restriction in 2005 so as to decide whether Villas should retain the rule, and thereafter notified all homeowners the rule would be strictly enforced from that point forward. In the face of years of past uncorrected violations, the decision to strictly enforce the pet restriction was a reasonable and informed decision of the board entitled to judicial deference.”

The Association’s enforcement action against Tempkin was therefore held to be reasonable, and the court found no basis to conclude that the Board acted arbitrarily or capriciously in denying Tempkin’s request for a variance.

One of the principal duties of a HOA Board is to enforce the HOA’s use restrictions uniformly and consistently. If a restriction in the CC&Rs or rules of the HOA is no longer suitable for the community or in line with the desires of its membership, the Board should not simply ignore the restriction. Rather, it should amend the CC&Rs or rules as necessary to remove the restriction. If the Board wishes to begin enforcing a restriction which has not historically been enforced by prior Boards of the HOA, the holding in Villas provides some guidance as to what legally acceptable course of action may be employed (i.e., surveys, notices, “grandfathering in” current violators, etc.). However, the appropriate course of action will depend on numerous factors such as the nature of the restriction itself. HOA Boards that are dealing with these types of issues should consult with their HOA’s legal counsel for guidance and recommendations.