Duty to Enforce
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DUTY TO ENFORCE

Duty to Enforce. A homeowners association, through its board of directors, has a duty to enforce its governing documents. (Nahrstedt v. Lakeside Village Condominium Assoc. (1994) 8 Cal.4th 361, 373-374, 380-383.) The enforcement of CC&Rs must be "in good faith, not arbitrary or capricious, and by procedures which are fair and uniformly applied." (Liebler v. Point Loma Tennis Club (1995) 40 Cal.App.4th 1600, 1610; Nahrstedt, supra, 8 Cal.4th at p. 383; Cohen v. Kite Hill Community Assn. (1983) 142 Cal. App. 3d 642, 650-652.) "This statutory presumption of reasonableness requires that recorded covenants and restrictions be enforced "'unless they are wholly arbitrary, violate a fundamental public policy, or impose a burden on the use of affected land that far outweighs any benefit.'" (Market Lofts v. 9th Street Market Lofts.) 

Although a homeowners’ association has discretion to decide whether, and in what manner, to enforce the governing documents, this discretion must be exercised consistent with its fiduciary duties and the plain language of the CC&Rs.  (Ekstrom v. Marquesa at Monarch Beach Homeowners Assn. (2008) 168 Cal.App.4th 1111, 1121-25; Ritter & Ritter, Inc. Pension & Profit Plan v. The Churchill Condominium Association (2008) 166 Cal.App.4th 103, 122; Posey v. Leavitt (1991) 229 Cal.App.3d 1236, 1247; Lamden v. La Jolla Shores Clubdominium Homeowners Assn (1999) 21 Cal.4th 249, 268.)

“It is a settled rule of law that homeowners' associations must exercise their authority to approve or disapprove an individual homeowner's construction or improvement plans in conformity with the declaration of covenants and restrictions” and that they must do so in good faith, consistent with their fiduciary obligations to the homeowners. (Cohen v. Kite Hill Community Assn. (1983) 142 Cal.App.3d 642, 650-51; see also Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, 383.)

Associations can enforce restrictions through monetary penalties, suspension of privileges and legal action for injunctive relief.

Duty to Investigate. Since associations have a duty to enforce restrictions (Ekstrom v. Marquesa), it follows that they have a duty to investigate complaints by residents of rules violations, maintenance issues, and construction defects.

Discretion to Litigate. Boards have discretion when it comes to the decision to litigate to enforce 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 to litigate or not to litigate a particular violation. (Beehan v. Lido Isle.)

Standing. Associations and members have standing to litigate enforcement of CC&Rs. Tenants and non-members do not. See "Legal Standing."

Waivers. If appropriate, boards can voluntarily grant waivers. Failure by an association to act timely to enforce restrictions can result in an involuntary waiver of the right to enforce.

ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.