Approved Exceptions to CCRs

Our CCRs do not have any provisions for the creation of an "Approved Exceptions" to the CCRs. However, over the 20 years the HOA has existed, these have been issued.

For example, our CCRs state "There shall be no fence forward of the rear of the house". Out of ~150 single family homes, about 75% (of those having fencing) are not following this rule. The shape and orientation of the homes do not lend themselves to implementation of the rule as the development would have "odd" shaped fences that lack and continuity to their neighbors yard. So, over the years, the Architectural Committee has approved designs that directly conflict with the written/recorded rule. Other rules have been ignored (2 pet limit), non-traditional pets (e.g., rabbits, bees), and storage of travel trailers (long story, but uncertainty around what the definition is for "screened from view" resulted in exceptions)

The current BOD desires to now enforce the CCRs as written. The choice that has been made (for the moment) is to enforce a trailer "ban" (rules are clear, if strictly interpreted).

Questions:
1. Can the BOD begin enforcement of CCRs, even if previous BODs have issued written "Approved Exceptions"? The current position is they are invalid and should never have been issued.
2. Can the BOD selectively decide to enforce the CCRs? For example, can the non-compliance with fencing be ignored by the BOD while deciding to enforce other sections of the CCRs? In other words, is the BOD at risk legally for unequal enforcement of the CCRs?

Thanks for any input!

While not a lawyer:

Questions:
1. Can the BOD begin enforcement of CCRs, even if previous BODs have issued written "Approved Exceptions"? The current position is they are invalid and should never have been issued.

You would play he!! making them correct/change as they got approval. They are not violations as they were approved. What you can do is be tougher on enforcement more going forward.

2. Can the BOD selectively decide to enforce the CCRs? For example, can the non-compliance with fencing be ignored by the BOD while deciding to enforce other sections of the CCRs? In other words, is the BOD at risk legally for unequal enforcement of the CCRs?

I say yes meaning ignore the fence issues while going after to many pets. You often hear "selective enforcement" which means going after one for a violation when others are doing the same thing. Like going after only one person for a pet violation but not others committing the same violation. It does not mean ignoring parking violations while going after pet violations. This is not "selective enforcement".

I would think the BOD could enforce the rules but for me the question is who is responsible for the costs to make the changes. The Board never had the right to make exceptions to the CCRs so the Board was wrong and should pay to fix their error. If you can't enforce past ignorance of CCRs what stops the Board from ignoring the CCRs and doing whatever they want. So if I bought a trailer with the understanding I could keep it on my property but now I can't I would ask the HOA to pay the storage bill because I would have never bought it if I wasn't told I could keep it on my property. Same with the fence.

I agree with John.

Hi Geno,
Everyone seems to be OK with the non-selective enforcement of a specific CC&R chosen by the BOD. So, I'll go with that.

However, most of the "Approved Exceptions" related to fencing and/or structures. Seemingly, or at least the current perception would be that a detached garage would not need to be destroyed and rebuilt if CC&Rs require an attached garage. Probably would also be the common thinking (which, obviously, is not necessarily the legal position) that fencing would need to be pulled up upon sale of the property. The paperwork does not really address the exception being to the owner, or to the property. But, I would be concerned that a homeowner could argue that if the slope of their roof WAS approved, though not precisely what the CC&Rs require, that the exception applies to the home/property and not the person that applied for the exception.

Enforcement of some CC&Rs will have significant monetary impact to affected homeowners, so I'm guessing actual legal actions will be flowing from all angles to the BOD in very short order.

Hi Sue,
The CC&Rs were put in place by the builder nearly 20 years ago. Rumor has it they were a copy of boilerplate CC&Rs circulating within the county at the time.

There have not been fees for non-compliance, so homeowners have gradually encroached upon the precise wording of the regulations, or received BOD "permission" as an official means of side-stepping a regulation. Changing the CC&Rs has been attempted, twice. They were multi-year efforts that failed, as getting 2/3 of owners (of about 130) to agree on revisions proved impossible.

For example, the travel trailer parking exclusion is not exactly worded cleanly...

“The parking or storage of campers, camping trailers, pickup campers, trucks over ¾ ton, boats, trailers or unlicensed vehicles, is prohibited unless it is screened from public view.”

Technically, this excludes parking it in your driveway to wash it, or load it up. It allows a Ford F150, but would exclude a Ford F350... even though they look nearly identical. Some of the larger SUV's also exceed ¾ ton.

The last part of the regulation, "screened from public view." Has been kicked around for years. The result was a generally accepted non-regulation of "if it's behind your fencing, then it is screened and OK". In reality, fences are limited to a maximum of 6 ft so you would never be able to ENTIRELY screen a trailer from view.

Then others have stepped in and asked if it's covered... isn't that screened from view? After all, you can't see it?

As the BOD wants to (and can) start fining for non-compliance, but can't very well modify existing CC&Rs, they are left with strict enforcement of the regulations.

If the BOD starts enforcing (fining) to have travel trailers removed, they must enforce the ¾ ton truck or SUV. Or, this would falls back into the "selective enforcement" issue discussed earlier, which everyone agrees is a no-no.