Court Says Association’s Decision Not to Take Action Against an Owner in Violation of the CC&Rs was Not Entitled to Judicial Deference

This case involved a dispute between neighboring property owners and their homeowner’s association (“Association”) over the removal of a bamboo hedge by one of the property owners in order to make repairs to a retaining wall that surrounded the owners tennis court. The bamboo hedge that was removed was over 20 feet high and had previously prevented the other neighboring property owners from seeing the tennis court and its lights. The removal of the bamboo hedge was done with the consent of the Association. The neighboring owners contended that the unscreened tennis court violated the use restrictions that are contained in the Association’s governing documents and, after the Association failed to order the replacement of the hedge, the neighboring owners filed a lawsuit against the neighbors and the Association for breach of the Association’s governing documents, failure to enforce the governing documents, nuisance and declaratory relief. The lawsuit sought both injunctive relief and damages.

The trial court ruled that the Association’s failure to direct the replacement of the natural screen created by the bamboo hedge violated the Association’s governing documents. Regarding the Association’s contention that its actions were entitled to judicial deference, the court found that judicial deference was appropriate where the Association acts in a manner consistent with its governing authority and exercises its discretion within that authority. Stated differently, where a board acts in a manner inconsistent with its governing documents, the actions are: