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.
The facts of this case show that an Association can effectively revive covenants that haven’t been strictly enforced in the past. Here, the Association had granted numerous variances from 2003 to 2005. The Association later polled the community and determined that the majority of owners still wanted the one-dog rule. After the poll, the Association notified owners that it would strictly enforce the restriction. It grandfathered in existing two-dog households, subject to good behavior requirements. In spite of this notification and the existing covenant, the defendant homeowner purchased a second dog to be mentored by his older dog.
The Association’s enforcement methods focused on fines, which the court noted as being reasonable. Ultimately, the court ruled that the board’s decision to enforce the restriction and not issue variances, as it had in the past, was a reasonable and informed board decision. The court deferred to the board’s judgment in the governance of its own community, rather than substituting its judgment for the board’s.
It’s a simple reminder of a problem we see every day – covenants exist, and they are enforceable. Don’t ignore them and hope that no one will notice!