A "waiver" is the voluntary, intentional surrender of a known right, claim or privilege. When it comes to CC&R restrictions, boards can grant an exception, variance, or waiver to the association's right to enforce the restriction if circumstances warrant.
Guidelines. Unless the circumstances are extraordinary, the granting of a waiver will often result in other requests for similar waivers. The following principles should guide the granting of waivers:
- The waiver should not be a major deviation from your CC&Rs or rules, such as allowing an owner to have two 80-pound Pit Bulls in a condominium complex that restricts owners to one 20-pound dog.
- The waiver should not change the character of your community (allowing a French Tudor house in a Spanish-style community).
- The waiver should be in the minutes of an open meeting with a full explanation of why the waiver was necessary and proper.
Under the Business Judgment Rule, directors must make their decisions in good faith and in the best interests of the association.
Failure to Enforce. Failure by an association to enforce its restrictions can result in legal action by members against the association for its failure to enforce the rules or an involuntary waiver of the association's right to enforce its restrictions.
Recommendation: If a member requests an exception for themselves from the association's architectural guidelines or recorded restrictions, boards and architectural committees should seek legal counsel before granting the request.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.