Lack of CC&R enforcement - any recourse

Our Board refused to enforce the rules regarding garage usage, # of pets, and some others. Community is now overcrowded and losing value. In California, what recourse is there to make the Board accountable?

How old are these CCRs? Maybe they need to be updated. Establish a committee to review them and see if they are even relevant. Of course, there will be a big vote threshold to change them, but at least the Members would have some input.

You will need to document just how these violations are decreasing property values. In the meantime, big orange sticker-signs on the garbage cans MAY get some attention.

The first, best and least often used recourse to make any elected official accountable is a conversation.

after that, then there is the ballot.

In many cases the board is operating on covenants with no teeth in them and owners know that. In our state even if you choose the legal route and pay huge fees they can't be foreclosed on because of our homestead laws (which is only allowed for non-payment of assessments) I wouldn't lay the blame at the board. Perhaps you can amend your docs so you can take some action.

Thanks for all of the responses. We are a condo association and our documents state that the Board is responsible for enforcing the CCR's.

I have been checking our documents. A few of the rules that are not being enforced are the following:

Residents must park at least 1 car in garage/carport (most important one at this point)

Others are:
No posting of garage sale signs on street posts/mailboxes
No more than a max of 2 dogs per unit
Trash cans must be brought in within 12 hours after trash day

The reason the Board does not enforce the rules is because most are in violation of garage usage themselves. Therefore they choose not to do anything.

So, short of a recall, what can those of us who want the rules enforced do? I have considered small claims court.

thanks

We just had a recall, got 4 or 7 spots. One member has recently swung to "their side" and we don't have majority. This lack of enforcement is not a new problem. I confronted the Board years ago about the garage policy and at that point only 1 of 7 members confessed to using his garage.

yes, he was very deceiving

so any ideas

They park in the lots, some with 4 cars. We only have 910 spaces for 914 units so things are already tight.

thanks Brian, new election coming. We'll see who gets on.

Mary,

I read everything you said here, again, very carefully. And I quickly checked our CRRs. No where I could find (under the Use of Property: parking , pets, leases) or anywhere in the covenants a disclaimer or any statement that the Association is responsible for enforcing these rules.

Only under the ‘Maintenance’ it says: 'The association shall at all times be responsible for the maintenance and care of the exterior of all units.. ‘

Other than that, the by-laws ‘under ‘Power and duties of the Board of Directors’ list enforcing rules listed under the Articles and By-laws.'

Is that a loop-hole in our documents which ought to be addressed?

Eva,

According to case law in AZ, (which judges in other states may refer to) unless the gov docs state the BOD has a "duty" to enforce they may be held accuntable for a failure to enforce. Your CCRs should have an article entitled "Enforcement" whereby the BOD is given the power to enforce the CCRs. It's that wording that should be carefully looked at. My CCRs state: "The Assn, as agent and rep of the owners, shall have the exclusive right, but not the obligation to enforce the provisions of this declaration." Then it goes on to state if the BOD fails to enforce at least 10% of the owners may petition the BOD to do so but if within 30 days they fail to do so the members may enforce on behalf of the assn.

Robert,

thank you. We are just in the process of reviewing our documents which are almost 30 years old. Our struggle is the ‘interpretation’ of some of the provisions which are dated, lack clarity or simply do not comply with the new laws.The Florida Chapter 720 does not seem to say who is responsible for enforcing covenants - including leases, ‘guests’, pets, parking, etc. But, I will check again.

Eva, This to your post here and your one to me.

I will leave this to Mary or Donna as far as Florida Statute is concerned.

But, I interpret this clause to mean the Board has the right to notify specific owners of specific problems covered under the documents and request specific compliance. This request has to consider your documents provisions. If they want to p[resent their case to the Board they should be given the opportunity. If they ignore this request for resolution the Board thereby has the authority to file suit to enforce the covenants.
My opinion.

Mary, am very sorry, I made a mistake. There is an Article ‘Enforcement of Declaration’:

' The enforcement of this Declaration may be by proceeding at law for damages or in equity to compel compliance with its terms or to prevent violation or breach of any of the covenants or terms herein. Enforcement may be sought by the Developer, the Association, or any individual and should the party seeking enforcement be the prevailing party then the person against whom enforcement has been sought shall pay all costs and reasonable attorney's fees at all trial and appellate levels to the prevailing party.'

And here again under ‘Use of property’

‘Should the Association be required to seek enforcement of any provision of the Declaration, then, in that event, the defending townhouse unit (for himself or for his family, guests, invitees, or lessees) shall be liable to the Association for all costs incurred in trial or appellate proceedings or otherwise.’

Eva,

I interpret the enforcement provision to mean the board can choose to enforce or they can choose not to -- either way they will be in compliance with the CCRs. Use of the word "may" gives the BOD the authority to choose. If the word "shall" had been used, then the BOD would be obligated to enforce, however, absent the word duty, if they didn't a court may rule in their favor.

The fact that the Board has not enforced the covenants for years is not material, unless a date is specified for enforcement. Your documents probably contain a statement that the non-enforcement of documents does not forbid the Board to enforce at any time. Pretty standard term, I think.

Of course the members cando more than complain. they can assert their rights, they just have to know them a have a desire.

Eva, you know who elected the Board, you know who can dis-elect the next board, you just need to know how to get all this done, and either state law or your documents will tell you. Get some support together, compose a mutual mission statement, learn your documents and stir up some action.

Eva,
No problem here, I hope I don't sound judgmental, folks like you that take on these thankless tasks are the salt of the earth.
Then they change and become regulars here and turn out to be a pain in the butt, just like me.

MaryA1, I also could not find a section titled "Enforcment: this what I did find that seems close to clarifying the wording.

In CCR, in section called "The Association: Powers" I found the following:

The Board of Directors shall have the following rights and powers: To adopt by-laws and/or rules and regulations not inconsistent with the provisions of the Declaration, including but not limited to, rules and regulations relating to the use of and activity in the Residential Common Area, Recreational Common Area and Restricted Comon Area.

Then goes on to list other things "To Do", maintain bank account, levy assessments, and some others.

In By Laws, under "Functions of the Association":

Sec 1 - The Association is to act as a "management body" for the preservation, maintenance, architectural control and improvement of the Recreational Common Area and Residential Common Area.

Sec 2 - The BOD shall have the power to exercise any right, power or purpose set forth expressly or by reasonable implication in the Declaration, the Articles of Incorporation or these By-Laws.

Sec 3 - Pursuant to the provisions of the Article entitled "Assessments" of the Declaration, it shall be the duty of the BOD to fix, alter, collect and enforce assessments upon Owners.

Does this wording make enforcing rules their duty or option?

Nothing! You seem very helpful, can I email you the documents?

This is in Rules and Regs

ENFORCEMENT PROCEDURES
Any violation of the governing documents (CC&R’s, Bylaws, Rules and Regulations and
Architectural or Landscape Policies) of the Laguna Village Owners’ Association will be
processed according to the procedures outlined herein. A violation notice will be generated to
the offending Member in the event two (2) or more Members of the Association, or Board of
Directors, or their authorized agent file a violation report.
1. An initial courtesy letter will be sent advising the Member, and in the case of a
Tenant a copy will be sent to the Tenant, of the alleged violation and the date by
which the violation needs to be corrected by, typically ten (10) days.
2. Upon expiration of the cure date, if the violation still exists, a second letter will be
sent to the Member stating that failure to abide by the Association’s governing
documents within ten (10) days, will result in a notice of hearing being sent to the
Member.
3. If the violation has not been corrected with the ten (10) day period, specified in item
number 2, then a Notice of Hearing will be sent to the Member, requesting same to
appear before the Board of Directors at the next regularly scheduled Hearing
Meeting.
4. The Board of Directors will weigh the facts as presented. The Member will then be
advised of the Board’s decision within ten (10) days as to the Board’s findings. If the
Member is found to be in violation of the Association’s governing documents, the
Board may:
a. apply a monetary fine, twenty-five ($25.00) dollars to the Member’s assessment
statement,
b. suspend the Members use of the recreational facilities, not to exceed thirty (30)
days,
c. suspend the Member’s voting privileges, not to exceed thirty (30) days, or in the
event of a continuing violation, voting privileges may be suspended for as long as
the violation continues,
d. institute legal action, or
e. a combination thereof.
5. Repeated violations will be subject to additional fines and/or suspensions after a duly
noticed Hearing. Violations continuing past the notice to the Member of the Board’s
decision will be deemed a new violation.
6. If a Member’s compliance with a violated provision of the governing documents is
not obtained after the imposition of two (2) or more fines and/or repeated
suspensions, the Board will consider implementing legal remedies.
7. Please refer to the Parking Rules and Regulations herein for enforcement procedures
relative to vehicle violations.
NOTE: A violation is defined as an act in conflict with the CC&R’s, Bylaws, Rules and
Regulations and Architectural and Landscape Policies, or other governing documents of the
Association.
Should a violation occur which imposes financial obligation on the Association, then the
Member responsible for said violation shall reimburse, by way of a Special Assessment, the
Association for this financial obligation. If for example, a fence, tree or any other common
area property is damaged, repair and/or replacement cost will be included in the Special
Assessment.

So maybe the mention of suing the association will get some results.

Good Lord Thomas,
There are tons of associations in CA that you could compare documents with.

Rules that are not enforced:

REQUIRED PARKING IN GARAGE/CARPORT:
No garage or carport shall be converted to living quarters or used for storage, hobbies or
recreational activities. Each resident owner, or in the event a unit is leased, each tenant, shall park at least one (1) Authorized Vehicle within the unit’s garage or carport before parking any additional vehicles with the common area.

limit on # of dogs is 2

no garage sale signs taped to posts (people leave tape behind)

Balcony railings must be kept clear of all plants, pots, and decorations.

All trash receptacles must be placed in front of the unit (on the driveway, not in the greenbelt) no earlier than 12 hours prior to the scheduled pick-up day and must be removed from the Common Area no later than 12 hours after the scheduled pick-up day.

No individual shall install decorative objects of any kind in the Common Areas(including but not limited to: figurines, ceramic or other materials, potted plants, signs, whirly-gigs, trellis, fences, etc…)

This blind-eye approach is creating a rundown community, my value is dropping more than it should be.

Why don't you send the BOD section 1354 of the Civil Code that I posted? A homeowner can ask the BOD to enforce. Your BOD should be smart enough to know that a homeowner can sue for lack of enforcement in California. I would not try and threaten them, but do tell them in a nice way what is bothering you about their lack of enforcement. If homeowners are parking all over the place, having too many animals, and using their garages for storage instead of parking, you have valid concerns and they should listen and take the appropriate action.

Here's some more information that I copied from the Davis-Stirling website.

Associations have standing to institute, defend, settle, or intervene in litigation, arbitration, mediation, or administrative proceedings on behalf of the membership (Civil Code §1368.3. Duffey v. Superior Court) in matters pertaining to the following:
enforcement of the governing documents, damage to the common areas;
damage to the separate interests which the association is obligated to maintain or repair; and
damage to a separate interest that arises out of, or is integrally related to, damage to the common area or separate interest that the association is obligated to maintain or repair;construction defects. Windham v. Superior Court

Discretion to Sue. Boards have some discretion when it comes to the decision to litigate to enforce the governing documents. Boards can weigh the cost of litigation, the gravity of the violation, and the likely outcome of the litigation, and make a good faith determination not to litigate a particular violation. Beehan v. Lido Isle

Failure to Enforce. Associations can be held liable for their failure to enforce the CC&Rs. Owners may sue the association for damages and an injunction to compel the association to enforce its documents. Posey v. Leavitt

Owner Enforcement. Individual owners may also bring legal action against persons who violate the CC&Rs. Civil Code §1354(a)

I am surprised that your BOD does not take enforcement matters seriously. Maybe, they are not aware of the law. You can go to berding-weil.com and click on the library. You can download the entire 2009 statute book. It's long, but you can search on specific topics. It's a PDF. Maybe, you should send it to your BOD and make them aware of the law.