Oh yes we can.
It is not unusual for us to encounter communities with strict restrictive covenants that have not been enforced in a strict manner. Much of the time, this is due to apathy or ignorance. In other circumstances, Board turnover results in more or less enforcement. Some Boards hate to enforce against their neighbors, and offer so many variances the covenants might as well not even exist. Some Boards will interpret documents in a manner different than other, future Boards, but when the documents remain the same, we have to figure out what to do to follow those documents in light of the community’s history.
A recent case in California provides a bit of guidance for those of us facing the historical enforcement challenge. In The Villas in Whispering Palms v. Tempkin<!–, No. D065232 (Cal. Ct. App. May 18, 2015), No. D065232 (Cal. Ct. App. May 18, 2015) the California Court of Appeals held that an association board that had historically offered numerous variances to a one-dog rule was not required to offer variances. The homeowner claimed the Board was unreasonable because it had provided variances and allowed multiple dogs in the past. The Court ruled that the Association’s prior variances did not impact its ability to deny the requested variance.