Failure to Enforce Clause

MikeC34 (Idaho)
Posts: 11

Posted:

My community has an HOA and the usual CC&Rs. However, there is a "Failure to Enforce" clause that states:

"Neither the Association nor the ALRC (Architectural Committee) shall be liable to any person for failure to enforce any of the terms hereof, for personal injury, loss of life, damage to property, economic detriment or for any other loss caused either by their enforcement or non-enforcement. The failure to enforce any of such matters, including any covenants contained in this Declaration, shall not be deemed a waiver of the right to subsequently do so."

My question: How can an HOA require a homeowner to accept the CC&Rs, and then exempt themselves from the obligation to enforce flagrant violations of those rules? Does that clause actually hold up in court if challenged with overwhelming evidence of serious violations (not minor annoyances) ?

TerriS6 (California)
Posts: 3,284

Posted:

The CC&Rs are enforceable equitable servitudes. Board can enforce and members can enforce equally.

MikeC34 (Idaho)
Posts: 11

Posted:

Thanks for the reply. Yes, you're correct, my CC&Rs state that as an Owner, I have the authority to enforce after written demand is made on the HOA and it fails to act. However, it is the HOA that has created the issue between myself and my neighbor. For context, all retaining walls in my community are built with concrete blocks, decorative stone or boulders. Yet the HOA approved plans for my neighbor to build a wall between our properties that is made of wood, placed in the wrong location (nearly 3 feet from the lot line), and very poorly built - IOW, it's an anomaly within this community, doesn't belong and has devalued my home. I shouldn't have to sue my neighbor for something that was the HOA's responsibility in the first place. The HOA could very easily fix this mess by simply sending him a letter. (Apologies, I just realized this forum is for HOA members as opposed to residents)

ElleN (Idaho)
Posts: 4,420

Posted:

Some states have either case law or a statute section that require the HOA to enforce the covenants. When a HOA does not, and it is to the detriment of another owner, then it is common for the owner who was harmed to name both the HOA and the offending neighbor in a lawsuit.

If you are truly in Idaho, as you may be aware the Idaho HOA statute is rather short. I found nothing obvious in it that would help you. Idaho also has relatively little case law on HOAs. I also found nothing in the case law that would help you.

I think I hear your outrage that so far, the HOA will not, ya know, pool owner resources, hire a HOA attorney, and help you shut this neighbor down. I would feel similarly.

But the covenant on enforcement says what it says. I would not want to bet that an Idaho court would agree the covenants or corporate law require the HOA to enforce the covenants.

Most importantly, the courts say you had notice of the covenants and the covenant that says the HOA does not have to enforce the covenants. So asking otherwise does not quite seem fair, at least in Idaho, with a dearth of case law and no statute section to back you up (that I can see).

I advise straight up suing the neighbor. Forget about the HOA. Life is short.

ElleN (Idaho)
Posts: 4,420

Posted:

Some states have either case law or a statute section that require the HOA to enforce the covenants. When a HOA does not, and it is to the detriment of another owner, then it is common for the owner who was harmed to name both the HOA and the offending neighbor in a lawsuit.

If you are truly in Idaho, as you may be aware the Idaho HOA statute is rather short. I found nothing obvious in it that would help you. Idaho also has relatively little case law on HOAs. I also found nothing in the case law that would help you.

I think I hear your outrage that so far, the HOA will not, ya know, pool owner resources, hire a HOA attorney, and help you shut this neighbor down. I would feel similarly.

But the covenant on enforcement says what it says. I would not want to bet that an Idaho court would agree the covenants or corporate law require the HOA to enforce the covenants.

Most importantly, the courts say you had notice of the covenants and the covenant that says the HOA does not have to enforce the covenants. So asking otherwise does not quite seem fair, at least in Idaho, with a dearth of case law and no statute section to back you up (that I can see).

I advise straight up suing the neighbor. Forget about the HOA. Life is short.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By MikeC34 on 11/05/2023 1:34 PM
Thanks for the reply. Yes, you're correct, my CC&Rs state that as an Owner, I have the authority to enforce after written demand is made on the HOA and it fails to act. However, it is the HOA that has created the issue between myself and my neighbor. For context, all retaining walls in my community are built with concrete blocks, decorative stone or boulders. Yet the HOA approved plans for my neighbor to build a wall between our properties that is made of wood, placed in the wrong location (nearly 3 feet from the lot line), and very poorly built - IOW, it's an anomaly within this community, doesn't belong and has devalued my home. I shouldn't have to sue my neighbor for something that was the HOA's responsibility in the first place. The HOA could very easily fix this mess by simply sending him a letter. (Apologies, I just realized this forum is for HOA members as opposed to residents)

I don't know if that failure to enforce clause is applicable but you can certainly hold the association accountable. I'm assuming your neighbor won't change it on his own. You could follow the required steps to resolve this problem that your governing documents state, like letter, internal resolution , whatever it says but the board needs to make the neighbor change the wall and you probably could handle it in small claims court. I just don't know what your state laws are. Board was required to approve only a certain type of wall. They need to fix it. And this forum is for anyone, not just members.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By TerriS6 on 11/05/2023 3:37 PM

I don't know if that failure to enforce clause is applicable but you can certainly hold the association accountable. I'm assuming your neighbor won't change it on his own. You could follow the required steps to resolve this problem that your governing documents state, like letter, internal resolution , whatever it says but the board needs to make the neighbor change the wall and you probably could handle it in small claims court.

It's injunctive relief (an order from the court for the offending neighbor to correct the covenant violation) that the OP wants. It's highly improbable that Idaho small claims court would issue injunctive relief. California and to a lesser extent, Texas, are way unusual in this respect. Anyone reading Idaho's extremely short HOA statute would get this.

He can try to hold the HOA accountable. But since he is stuck suing in either case, I do not see the point of spending money to sue a defendant that has a decent defense, in a court where it is always a roll of the dice.

MikeC34 (Idaho)
Posts: 11

Posted:

ElleN, you're correct, small claims is only for seeking monetary relief up to $5k; they would not grant an injunction.. To make matters worse, the neighbor just listed his home for sale so in order to stop any sale from taking place, as far as I'm aware, I would need to sue him, and have a lis pendens recorded against the property with the county. I do intend to consult with an attorney this week to see where we stand. Just seems ridiculous that the HOA can impose all these rules on owners that we have to follow, yet when (serious) rules are broken, the HOA can simply decide, "Na, we're not going to address that"

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By MikeC34 on 11/05/2023 3:56 PM
ElleN, you're correct, small claims is only for seeking monetary relief up to $5k; they would not grant an injunction.. To make matters worse, the neighbor just listed his home for sale so in order to stop any sale from taking place, as far as I'm aware, I would need to sue him, and have a lis pendens recorded against the property with the county. I do intend to consult with an attorney this week to see where we stand. Just seems ridiculous that the HOA can impose all these rules on owners that we have to follow, yet when (serious) rules are broken, the HOA can simply decide, "Na, we're not going to address that"

In a short, just-the-facts, emotion-free letter, sent by certified mail, cc'd to the HOA, I hope you put your neighbor on notice that he is in violation of the covenants and you want him to correct it.

Then sic the attorney on him.

Personal anecdote, not in California:
For almost three years, owner Jason demanded the HOA enforce the covenants pertaining to his neighbor encroaching on Jason's lot. The covenants had a non-enforcement clause like MikeC34's HOA's covenants. The board time and again refused to help Jason, on account of being short of funds (one third of 2000 owners were delinquent; over $300,000 owed to the HOA). Around 2012 Jason lawyered up and sued his jerk neighbor and the HOA. The HOA lawyer said all would be fine, because of the covenant clause giving the board the discretionary authority not to enforce. Such clauses were (and still are?) common. Then in 2013 the HOA statute was amended, and a statute section was added that seemed to say the HOA had to enforce the covenants. The HOA got slaughtered, either in court or in the settlement (I forget which).

But note the optimism of the HOA lawyer before the statute change.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By ElleN on 11/05/2023 4:05 PM
In a short, just-the-facts, emotion-free letter, sent by certified mail, cc'd to the HOA, I hope you put your neighbor on notice that he is in violation of the covenants and you want him to correct it.

The point of this letter is to make it legally difficult for your neighbor not to disclose the violation to any seller.

If the seller fails to disclose the violation, and you end up going after the buyer, the buyer can go after the seller for failure to disclose.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By ElleN on 11/05/2023 4:17 PM
The point of this letter is to make it legally difficult for your neighbor not to disclose the violation to any seller.

Post-o. Change "seller" above to "buyer."

MikeC34 (Idaho)
Posts: 11

Posted:

Right, we were thinking along the same lines of contacting the real estate agent to advise him of the improper location of the wall, and that if someone buys, they will be responsible for property on our side of the wall. Nearly 100 photos showing every square inch of the property, but the crummy wall is conveniently portrayed to not be a part of his property.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By MikeC34 on 11/05/2023 3:56 PM
ElleN, you're correct, small claims is only for seeking monetary relief up to $5k; they would not grant an injunction.. To make matters worse, the neighbor just listed his home for sale so in order to stop any sale from taking place, as far as I'm aware, I would need to sue him, and have a lis pendens recorded against the property with the county. I do intend to consult with an attorney this week to see where we stand. Just seems ridiculous that the HOA can impose all these rules on owners that we have to follow, yet when (serious) rules are broken, the HOA can simply decide, "Na, we're not going to address that"

In CA small claims court grants injunctions if a statute specifically refers to it. I have obtained injunctions in small claims court.

JoeN6 (Virginia)
Posts: 94

Posted:

Three feet encroachment into the OPs property ?

Certainly the OP could have noticed activity before and during construction of this structure . Didn’t notice the first Timbers installed ? His high is this wall ? Building permit required ? That might have triggered a zoning permit ? I would start with a complaint to building and zoning at city hall . If it’s on your orooerty by mistake , you don’t need your HOA involved . He needs to remove it and restore the landscaping.

JoeN6 (Virginia)
Posts: 94

Posted:

Quote:

Posted By JoeN6 on 11/05/2023 4:55 PM
Three feet encroachment into the OPs property ?

Certainly the OP could have noticed activity before and during construction of this structure . Didn’t notice the first Timbers installed ? His high is this wall ? Building permit required ? That might have triggered a zoning permit ? I would start with a complaint to building and zoning at city hall . If it’s on your orooerty by mistake , you don’t need your HOA involved . He needs to remove it and restore the landscaping.

HOw high not his high *

MikeC34 (Idaho)
Posts: 11

Posted:

No, 3 feet into his property. i.e. his property is on my side of his wall. He let grass grow for two years there.. The city cares not about its appearance, that's where the HOA comes in, or doesn't in my case 🙄

JoeN6 (Virginia)
Posts: 94

Posted:

Ok . Then shouldn’t he be free to place the wall where ever he wants ? That should be a non issue . What exactly does the cccr say about fences and retaining wall s ? I’m assuming that “ landscape retaining walls are to be constructed of masonry - block , stone , concrete . Wood retaining walls are prohibited “. Is that correct ?

MikeC34 (Idaho)
Posts: 11

Posted:

The problem is that 3 feet of his property exist on our side of his wall, which is stupid to begin with, but he doesn't maintain it either. It's customary to place fences and walls at the property line, to avoid this situation. I should think any new owner with a brain isn't going to want to have property on the other side of the wall. (I tried to attach a photo but it said Invalid file type or file exceeds max size(1500kb) My file type is JPG and it was smaller than 1500kb.. What type should the attachment be?

TimB4 (Tennessee)
Posts: 21,059

Posted:

Mike,

Have you talked to your neighbor about this?
If you have, what was the reaction?
If you have not, why not?

Is there an issue of you maintaining that property (mowing)?

If there is an issue, or you prefer not to maintain, a simple solution would be to wait for the grass/weeds to grow to about foot high and then contact the appropriate authority in the county/city who enforces Idaho 22-2407 NOXIOUS WEEDS Landowner and citizen duties

However, the simpler solution would likely be to talk with your neighbor.

MikeC34 (Idaho)
Posts: 11

Posted:

It's a long story with a lot of details that I really need not get into here.. My main question was about that failure to enforce clause.. As stated, there's not a lot of case law on the topic in my state, and based on my research, going after an HOA in court is probably not the best way to go at this point.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Well, you always have the right to enforce the covenants as well. This would be done through the courts.

If failure to maintain is the one main issue, I'd suggest going the county route.
Our board actually did this to one individual who failed to maintain their yard.
The county plastered a large green sticker to the front door saying do it or we will and charge you.
The owner has maintained the yard ever since.

MikeC34 (Idaho)
Posts: 11

Posted:

I understand; No, the maintenance of the grass is just one issue.. The main issue is the wall itself. If I showed you photos of all the walls in the community, and then the wall he and his kids built, you would see the problem. It leans, there's rebar exposed, the wood is rotted looking, there's spaces between the courses, shims used; it really just looks like it was taken from a slum neighborhood and doesn't belong.

TimB4 (Tennessee)
Posts: 21,059

Posted:

I understand

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By MikeC34 on 11/05/2023 1:34 PM
Thanks for the reply. Yes, you're correct, my CC&Rs state that as an Owner, I have the authority to enforce after written demand is made on the HOA and it fails to act. However, it is the HOA that has created the issue between myself and my neighbor. For context, all retaining walls in my community are built with concrete blocks, decorative stone or boulders. Yet the HOA approved plans for my neighbor to build a wall between our properties that is made of wood, placed in the wrong location (nearly 3 feet from the lot line), and very poorly built - IOW, it's an anomaly within this community, doesn't belong and has devalued my home.

First, I apologize. I read quickly and missed that the HOA approved the owner's request. This changes things. It's one thing not to enforce the covenants. It's quite another for the HOA to expressly approve a violation of the covenants during the arch review process. These are very different situations IMO.

Second, I hear you that you feel the wall is an anomaly. But I want to double check: Does the wall clearly violate the covenants? In other words, if the architectural committee or the board has discretion in certain instances, then it's possible the committee or board did not see the wall as an anomaly. In which case the strength of your case is less.

If you quote verbatim exactly which covenants you think were violated, this will likely yield better feedback.

If the wall all by itself is a clear violation of the covenants, then I am changing my response and advising to go after both the neighbor, the HOA (or arch committee) and the board.

TimB4 (Tennessee)
Posts: 21,059

Posted:

There are some city/county codes for fences having to be maintained.
Do an internet search for your location and fence laws to find out.

It's possible that the county/city can still be involved if it's deemed dangerous by the County/city.

TimB4 (Tennessee)
Posts: 21,059

Posted:

I see part of the issue.

Since the HOA previously approved the plan, the Association could be held responsible to make the individual whole if they enforce.

Hopefully a realtor and inspector will point out the issue with the wall.

MikeC34 (Idaho)
Posts: 11

Posted:

Quote:

Posted By ElleN on 11/06/2023 6:46 AM

Posted By MikeC34 on 11/05/2023 1:34 PM

First, I apologize. I read quickly and missed that the HOA approved the owner's request. This changes things. It's one thing not to enforce the covenants. It's quite another for the HOA to expressly approve a violation of the covenants during the arch review process. These are very different situations IMO.

Second, I hear you that you feel the wall is an anomaly. But I want to double check: Does the wall clearly violate the covenants? In other words, if the architectural committee or the board has discretion in certain instances, then it's possible the committee or board did not see the wall as an anomaly. In which case the strength of your case is less.

If you quote verbatim exactly which covenants you think were violated, this will likely yield better feedback.

If the wall all by itself is a clear violation of the covenants, then I am changing my response and advising to go after both the neighbor, the HOA (or arch committee) and the board.

Like any matter, there are other complications. The HOA approved the owner's original request to use railroad ties for the wall, to which we immediately opposed (creosote treated railroad ties baking in the hot summer sun immediately adjacent to our windows was completely unacceptable. The original excavation of the embankment was illegal as he violated a state statute that says he must give notification to us of his intent to remove lateral supporting soil. We were scheduled to put our home up for sale the next week, but the decimation of the landscape destroyed the curb appeal and we couldn't list our home. In the hopes that he would have a retaining wall constructed quickly so we could try to salvage the remainder of the summer selling season, the HOA suggested he use cedar. Rather than having a qualified contractor put up the engineered wall, he and his two very UNqualified grand kids built the wall. The resultant wall, was worse than the original excavation. 4 feet high between our homes, the backfill wasn't done properly, so there's a downward angle into the back of the wall where if someone falls, they will fall onto his concrete driveway. Just a very big mess.

ElleN (Idaho)
Posts: 4,420

Posted:

Mike,if you meet with an attorney, I urge you to focus on violations of the covenants, city and county codes, and state statutes.

Your posts include complaints about many things that do not seem to involve violations of these.