Out of compliance construction detail - many homes

Our HOA was turned over from the developer 2.5 years ago. There is a requirement that all houses have a post lamp near the street (verbiage pasted below). 2 houses are missing post lamps, and a significant number of others have the post lamp near the house. The verbiage dictates install at "right of way" and I think "within 25' of street" would have been more clear, but that is not really the problem. Most homes were built while the developer controlled the subdivision (all homes by custom builders, not the developer) and I assume the builder just told the electrician to install a post lamp, and no one actually read the CCRs for the ones installed incorrectly. Houses have a 75-100 foot setback, so the difference

Anyway, at our annual meeting the HOA board indicated that since they don't know what the developer did, they are just going to not enforce the incorrect location of the post lamps. They will enforce against those houses missing post lamps.

1. My understanding is that a future board could choose to enforce the rules as written. So ignoring it for now is just abdicating responsibility. I assume the board could grant exceptions/variance to every out of compliance home? Our board seems to have no idea what variances might have been previously granted by the developer, I assume this would have to be tracked.
2. I assume another option is to change the CCRs so the location requirement is no longer so restrictive?
3. If the homeowners want the board to enforce location, how do they get the board to do their job?

So what would "you" do if you were in charge? Many neighbors that paid to have post lamps installed in the proper location are annoyed that they paid to do this, and others will get a pass.

“14.0 EXTERIOR LIGHTING
14.1 Every house shall have a carriage light and post at least six (6) feet in height at the right-of-way line as detailed in Exhibit A-1. Exceptions for panhandle lots or any other exceptions must be submitted to the Board of Trustees or appointed Design Review Committee. All post lights shall have a photo cell and remain lit during all hours of darkness.
14.2 No post lights of any kind shall be allowed along the narrow flag area; however, ground level lights to illuminate the driveway are allowed but not required. The carriage light shall remain lit during all hours of darkness unless a variance is approved."

NOTE – we have no flag lots or panhandle lots – Exhibit A is just the model number of the light and an image

Thank you for the reply, and yes I agree many things are more important.

But isn't a board obligated to do something? If the rule exists, don't they either have to enforce it, create waivers or change the CCRs?

If the board fails to address this, aren't they guilty of not doing their job? It was my understanding that board can't knowingly fail to enforce the rules.

I regret tossing even more complications at this situation, but: there may be local building codes that also weigh in on the presence / location of these lamps.

BillD

The only code in dispute is a CCR detail - there is no county ordinance, and I don't think anyone intentionally violated this, just most people don't read the CCRs when the purchase a lot or house.

but that is an interesting point. If someone buys a house with a CCR violation, and no one knew it until the board decides to enforce it, isn't the new owner on the hook too?

I don't really care. My light is in the proper place but my wife likes them for lighting the street when walking the dog. I am more curious about how an HOA board should/could handle this mainly because our HOA president will insist people screen their AC unit with bushes (no requirement for this) but ignore an obvious requirement. And this is a president that has personal favorites and others he picks on. I just want the HOA board to enforce any rules written or strike them from CCRs if they are not going to enforce.

I am tired of selective enforcement and would like a solution that works regardless of which way it goes. I am happy for the homeowners to vote on which way it should go.

You have to ask the board members and the property management company why they signed off to release the bonds if there was still items to be installed in the community.

You may be SOL to go after the developer. I would contact an attorney for options. This may be a construction defect or breach of contract issue.
Are you a BOD or the a property owner? If you are an owner, you would have to hire an attorney yourself.

It depends.

The lot is what is in violation, not the owner. So a new owner would inherit any violations on the lot. But, if you are in a state that requires resale disclosures, and you didn’t disclose, you may have forfeited your ability to enforce - or at least made it a lot more difficult.

I am just a member of the community. I doubt there were any bonds. This is small neighborhood of single family homes on large pieces of land. No clubhouse, pool, or anything other then a few small patches of grass common areas.

I was just curious how other HOA boards have dealt with something they discovered where a large percent of people are out of compliance with a regulation that was previously unenforced.

For us, I doubt we will get 75% vote to change the CCRs so we are down to either granting those a variance, or making them comply. I say let the members vote which way the board should proceed, but I expect the board will take the path of least resistance and offer a variance to anyone impacted.

The HOA board doesn't like to do attorneys and I doubt the board will spend money to move the lamps. Unless the constituents have some way to force the board down a particular path, my assumption is the President will just offer a variance to those affected, regardless of what the majority wants.

I just wanted to confirm that the board simply shouldn't ignore this for another 2 years

I'm confused. Do the majority want the posts moved or do the majority want the posts to stay put?

if its the latter, then wouldn't you have a majority to make a quick amendment to the CCR's and change the requirements?

I disagree that the board is abdicating their responsibility. Recognizing that a covenant should not be enforced, either due to it being abandoned or it having not been enforced fairly, is being responsible.

In the end, a board is responsible for doing whatever they believe is best for the association.

That seems to be contrary to the idea that the CCRs are a contract between 2 parties. If I as a homeowner expect rules to be enforced, why should others get a pass? This feels like selective enforcement and every discussion I have read on HOAs doesn't allow for this.

Is this a "hard" problem? That is, do the misplaced lights cause safety issues? Or do the odd locations cause maintenance issues (tree roots undermining structures or water pipes, or location interferes with trimming, etc.)?

Or is this a "soft" problem? That is, is it community esthetics, and how noticeable is it? Do visitors see the misplaced trees and recoil in horror? Or does it cause enforcement issues (likely yes in this case)? Or is it one of those things that certain homeowners will use to nurture grievances and conflict (sounds like it may be also yes)?

IMHO, if there are no "hard" problems but only "soft" ones, and there are many instances of the problem, and the builders are responsible (not misbehaving owners), then that would suggest modifying the CC&Rs and being done with it. I think enforcement is a non-starter at this point because of the numbers of violations and because homeowners didn't cause the problem (except maybe through ignorance). Also, if this is truly only about esthetics, the board risks spending a whole lot of time and effort on something that really isn't very important in the grand scheme of things - the board will have many more important issues to deal with that will need their attention.