HOA Boards Should Understand How “Waiver” Can Prevent the Enforcement of Restrictive Covenants

People who purchase properties located within common interest communities governed by a homeowners association are bound to comply with restrictions contained in the governing documents for the homeowners association. A homeowner who violates those restrictions is subject to various methods of enforcement that are contained in applicable state laws and/or the association’s governing documents, and the association has a duty to enforce those restrictions. Notwithstanding said duty, associations have some discretion that enables its board of directors to make decisions about the extent of action it wants to take to enforce a particular violation.

Occasionally, an association’s efforts to enforce a restrictive covenant against a particular owner are met with a defense of “waiver.”  The “waiver” defense is generally precipitated by a history of an association’s board of directors failing or refusing to enforce a particular restriction. When the association’s board then seeks to enforce the restriction against one homeowner, that homeowner may defend the enforcement action by claiming that the association has waived the right to pursue the violation because of the history of similar violations that the association has tolerated and not taken any enforcement action on. The theory underlying the defense, which is also referred to as “selective enforcement,” is that by failing to take enforcement against other people who have committed similar violations, the owner who is now being pursued by the association has been misled to his or her prejudice by the association’s lack of prior enforcement actions to believe that the particular restriction is no longer subject to enforcement.

To protect against the effects of a waiver, it is commonplace for the association’s governing documents to contain: