10 Common Defenses to Actions to Enforce Governing Documents

Members of homeowners associations are frequently confronted with situations involving claims by the association that the member is not complying with certain provisions that are contained in the association’s governing documents (Bylaws, CC&Rs, Rules, etc.). Typically, an association will attempt to resolve the alleged violations through the association’s internal dispute resolution procedures such as informal meetings, hearings, and mediation. When the internal dispute resolution procedures have been exhausted, the norm in enforcement proceedings is for the association to file a court action for injunctive relief and/or declaratory relief, and/or damages for the alleged breaches of the governing documents in question. How a homeowner responds to an association’s action to enforce alleged violations of the association’s governing documents depends on the facts and circumstances of the case. This article describes 10 defenses that might be raised by homeowners who are defending actions instituted by their homeowners association to enforce the association’s governing documents. An understanding of each of these theories would be beneficial to both homeowners associations and their members.

1. Lack of Authority

If an association does not have specific authority to bring the action under the association’s governing documents, it may not have the right to take the action that is being taken without having first satisfied the requirements for obtaining the authority. Some association declarations contain language that requires the board of directors to obtain prior consent of members before filing certain lawsuits. Occasionally, associations improperly seek to enforce rules that were never properly adopted in the first place. An owner may defend the enforcement action based on irregularities in the procedure utilized to adopt the rule sought to be enforced. Additionally, the filing of a court action against a member should also be authorized by the association’s board of directors. Frequently, the decision to file a lawsuit is made by one or two board members who have not first obtained the proper authorization from the association’s board of directors. Investigate minutes and resolutions adopted at board meetings to confirm that the action has been properly authorized

2. Unreasonableness

Generally, an association’s governing documents are enforceable as equitable servitudes that are binding on owners of separate interests in the association unless they are found to be “unreasonable.” Even if a restriction is deemed reasonable, the association’s interpretation of the scope of the restriction may be unreasonable. Principles that are commonly applied to determine the reasonableness of a particular covenant include:

a.  The covenant violates public policy;

b.  The covenant bears no rational relationship to the protection, preservation, operation, or purpose of the land against which the declarations is recorded; or

c.  The covenant imposes burdens on the affected land that are so disproportionate to the covenant’s beneficial effects that the restriction should not be enforced.

3. Unreasonable Restraint on Alienation