The courts usually want to allow homeowner associations to self-police. That means they will allow communities to make and enforce rules that are reasonable. The courts will tend not to interfere with rule making unless it is patently outrageous. They will less easily turn a blind eye when it comes to enforcement if it turns out not to be equitable. So pursuing one member for an infringement yet allowing another to go unnoticed is going to become a problem. Discrimination is a big no no in California and boards that do may even lack Errors and Omissions coverage for that eventuality (see article on Directors and Officers liability) Selective enforcement is sadly not uncommon. The board is upset about a particular type of infringement and pursues the owners who are infringing that rule and that rule only while leaving alone perpetrators who may be causing much greater damage or injury within the community. We had a situation in a smaller community where one director wanted to chase out a foreign born immigrant who happened to live in one home and rent out another. The problem was her tenant not the owner, but the owner was talked about openly in very derogatory terms.
The answer is if an association thinks a rule is bad they should change it or remove it. If the CC & R’s call for such a rule, they may have to rewrite the rule but ignoring it is only going to exacerbate the issue. Speaking of the C C & R’s some associations make up rules to suit themselves where the CC & R’s are silent on the issue. Without the authority of the CC & R’s no rules may be made. Most CC & R’s have a section usually headed use restrictions. Apparent violations need to be reported in writing and a letter or two seeking remedy issued. Failure to respond or failure to comply will usually result in a hearing. That will produce a plausible reason or a fine. A fine can be issued and even suspended for a short period, say 30 days, depending on the issue, pending remedy. Repeat offenders may be treated to an escalating cost, such as doubling the fine for a repeat offense within say 90 days and tripling if necessary,. Again the reasonableness of the fine can be at issue. One association I know was charging $100 a day for a minor offense and was up to $3500 before we cautioned them that it might not be collectable. As fines cannot be liened a small claims court action is a simple way to collect reasonable unpaid fines. Owners and sometimes their tenants have a variety of excuses for not complying. The most common is “I didn’t know”. Among the others are “it’s a free world”, “it costs too much”, “I am sick or elderly and need special treatment and the most famous “why are you selectively pursuing me when others…”
To most of these the cure is a polite explanation, an extension of time, a request for the filing of plans, an offer of help or a suggestion to use mediation services, internal dispute or alternative dispute resolution as called for by the governing documents. That is a far wiser and cheaper way than going to court. In a recent appeals court case in California Pacific Hills Homeowner Association v Prun, the Pruns were made to lower a fence and gate to 3 feet or set them back 20 feet from the front property line. If the Pruns opted for the second, to set back 20 feet, they would be allowed to have a 6 foot height but the association must pay 2/3rds of the cost