5 Year Statute of Limitations on Enforcement of HOA Violations … – Condo Guru – Everything About Your House, Apartment & Home

How true to time is it?

Is There A 5 YEAR STATUTE OF LIMITATIONS ??

I am often asked (by boards and by owners) when a board loses the right to object to an existing situation, improvement, violation of restriction, etc. There are some time limitations on enforcement of Declarations/CC&Rs; restrictions in homeowner associations. There are two statutes which you can find at the California State Government website by navigating to the laws – namely the California Codes. These statutues are Code of Civil Procedure Section 336 and Civil Code Section 784. The time limit is five years. BUT …. DO NOT STOP THERE! It is important to read on! Because for every “Rule”, there are exceptions. This concept is no different.

What the two statutes mean is that California HOAs must pay attention to the passage of time in considering what to do about a violation of the restrictions of the CC&Rs.; If the board knows about a particular violation on a particular property or by a particular owner or resident and lets it go for 5 years without taking any “action” (which generally means suing), then the HOA may be unable to enforce the restriction in that particular situation going forward. This law does not mean that the association is barred from enforcing a violation as to one owner or property of that it is barred from enforcing a restriction as to others. To the contrary, the law specifically says it does not apply to bar enforcement in other situations. And it does not mean that an HOA must sue someone to get relief. No … it means when a violation is discovered, get to work – notify the owner early and start applying the right kind of pressure to get the matter resolved. Do not wait until the last minute! And if the situation has been in place for years, get good advice as to your rights before acting!

What Are the Exceptions?

Now, for the hard part: – there are several very pertinent questions, no matter which side you are on (owner or HOA board):

What exactly is the violation?
When did it begin?
When any board member become aware of it?
Was the situation in place before 2001?
What facts lead up to discovery of the violation?
Is there anything in the record validating these things? (Anything in writing or verifiable?)
Have there been any letters, telephone calls, or the like?
Have the owners done anything to change the situation during the course of its existence?
Did the current owner create the situation or was it there when he or she moved in?
Are other owners doing the same thing?
Why are these questions important?

The 5 year limitation is not “set in stone”, meaning there are a number of things that may determine how firm it is. And that is not the only factor in looking at a long term situation. Factors that become very important are whether any exception applies, whether anything has happened that might extend or shorten the timeline, and “date of discovery”, whether the violation has been enforced against others (or other situations are being ignored) and things like that.

A good reason for asking these kinds of questions and having the information ready before speaking with legal counsel is so that the attorney assisting in analyzing whether a board can enforce the restriction against an owner can determine when the violation was or should have been “discovered”. These are all important facts to establish whether the 5 year statute of limitations applies to bar enforcement in any given situation. And, the attorney will be looking to see if there are any extenuating circumstances that could extend the time limitation, or shorten it. There will be other questions that are pertinent as well. It is not a good idea to assume the 5 year statute applies or does not apply without getting some good legal advice because dates of discovery are not always easily determined. And it is important to consider other factors as well, such as a possible change in conditions, how others are affected, what other violations exist (consistent treatment issues may arise). And, lay persons commonly are not educated about how and what exceptions would be defined by case law.

Considering Enforcement of CC&R; Restrictions That Have Not Been Enforced For Years.

Boards often ask what can be done when certain rules and regulations or restrictions are not actively enforced for a long time. There can be various reasons for such conditions. Sometimes it’s simply a matter of money. A board feels it does not have money to spend on enforcement. Sometimes it’s a “lax” board or overzealous developer more interested in sales than enforcement of his or her own restrictions imposed in the CC&Rs.; Sometimes it’s a change in conditions or makeup of the membership. Sometimes it’s failure to “discover” the situations until there are many. The best course toward determining enforceability and what the options are is a pragmatic course of action. If a number of owners are doing the same thing, have built decks, have constructed sheds, have adopted extra pets, etc. over the course of years, the board may be able to enforce a restriction in one situation but not another, simply because of a difference in the duration, circumstances, facts, or evidence.

Something important to understand when a board identifies a prevailing problem or a different or complicated aged violation, or when an owner becomes the subject of an enforcement “campaign” for something he or she does not believe can be prevented because of the length of time of the violation is don’t make assumptions about the enforceability, or that you can comprehend all of the possible solutions to resolve the situation in the best interests of all parties.

Get the right kind of advice! Failure or lack of enforcement of any violation may have given other homeowners the idea that the violation would be acceptable. Some may bristle at the idea there will be a change in course if the problem is something that many know is against the CC&Rs; but “everyone” is doing it anyway. Sometimes something as simple as a notice to the homeowners in violation works, especially if the owner(s) did not know about a requirement. Sometimes peer pressure works. If a notice notes a growing problem that already affects or could adversely affect many of the owners, they may help spread the word and put pressure on the violators. Sometimes owners begin to see that the passage of time without enforcement has lead to certain changes that are undesirable. And sometimes more aggressive enforcement might be needed. The notice to owners could say that the board will begin more vigorous enforcement at some certain date or point in time in the future. The idea would be to give an owner a fair opportunity to cure the problem, and if the board is challenged by an owner – reasonableness could become an important part of the picture. From an owner’s perspective, sometimes a board will consider contributing to the “fix” if it appears it could cost more money to sue for a remedy to the situation. So don’t rule out keeping an open mind to possible solutions that might resolve the board and subject owners’ dilemmas.

When the problem is lots of “old” violations, the first thing I do is suggest that the board use a “Matrix” to describe the properties, the problems, pertinent facts, and to add a column for the possible solutions and dispositions which we can discuss. Once I know everything the board knows, I can help to analyze what the best course of action is for each situation. The passage of time for each situation will have considerable importance.

The “cleanup” process often starts with an enforcement and disciplinary action policy adopted by the board (after the appropriate pre-approval circulation process), and a notice to owners about what to do/what is expected/what to expect, often offering a “grace period” to bring the properties into compliance. Sometimes a board has lost its rights to do anything. But more often, there are a variety of things to offer the owner first, before giving up because of the passage of time.

THERE IS A LOT MORE TO LEARN ABOUT ENFORCEMENT!

For more on this and other enforcement questions – check out the free articles and FYIs, and see the Enforcement Primers available on the website. There is a series of 5 (they are $25 each). They include ENF-1 Basic Enforcement, ENF-2 Intermediate Enforcement, ENF-3 Parking and Towing, ENF-4 Difficult Neighbor to Neighbor and Nuisance Matters and ENF-FORMS which includes forms for setting policy, proposed letters to violators and sample policies related to enforcement, including a sample Fines policy which is required to impose fines on any member in a California HOA or Condo Association. Go to the “mainpage” of the website and click on “Publications“. If you purchase 4 Primers, you can get a fifth one free! Just place the order and then email me and tell me the name of the Primer you want for free.