Enforcement Guidelines for HOAs

Johnson v. The Pointe Community Association is a 2003 Arizona Appeals Court case that addresses a homeowners association’s obligation to enforce restrictions in its governing documents, specifically in the “Restated Declaration: Homeowner Benefits and Assurances for The Pointe” (an elegant title for the document typically referred to as “CC&Rs”).

The Johnsons became upset when their neighbors, the Boyles, made some changes in their backyard, particularly the installation of a trellis against a common wall. The Johnsons also complained that the Boyles changed the texture of the stucco on the back of their home without approval of the Association’s Architectural Committee[1]; and that there was “exposed” electrical wiring on the Boyles’ altered patio.

During the course of a year, the Association addressed each of the Johnsons’ complaints, but took the position that it would not pursue the Boyles for the strict enforcement that the Johnsons were seeking on two issues:

Electrical wiring: The Board of Directors determined that the electrical wiring at issue was in conduit and painted the color of the house, which was how the wiring was installed during original constriction. Even though the CC&Rs requires all exterior wiring to be concealed, the Board believed it could not require a change from original construction, even if it was removed and replaced during renovation. The Johnsons’ position was that the Board did not have the authority to waive compliance with a restriction in the CC&Rs, and the electrical wiring needed to be completely hidden and not in visible conduit.
Stucco Texture: Johnsons’ original complaint was that the Boyles did not seek nor receive the required prior approval of the Architectural Committee before changing the texture of the stucco on the back of their house. The Association’s position was that Committee approval was not required.

In this opinion, the Appeals Court agreed with the Johnsons and held that the decision of a Board of Directors will not be given deference when a matter of enforcement is brought before a judge. Rather, the judge will make his/her own findings and conclusions. The Court also held that the Board of Directors did not have authority to waive compliance with the CC&Rs (the electrical conduit) or to allow the change in stucco texture without review by the Architectural Committee. The opinion points out that the Johnsons were not trying to prevent the Architectural Committee from approving the stucco change, and only sought to have the Association require the Boyles to submit for approval from the Architectural Committee. Since the Board of Directors did not require the Boyles to obtain the approval of the Architectural Committee with respect to the change in stucco texture, the Association violated the CC&Rs, which specifically requires an owner to obtain the written approval of the Architectural Committee for any exterior modification.

The Johnson case gives us at least two guidelines:

When an HOA’s governing documents place a specific obligation or prohibition on the owners, the Association must enforce the pertinent restriction as written. If the restriction no longer reflects the needs and culture of the community, then go through the process to amend or remove the restriction.
In retrospect, it appears that this lawsuit between two neighbors might have been avoided if there had been some communication and reasonable negotiation before the Boyles made changes to the appearance of their yard that affected the Johnsons’ equanimity. I do not have all of the details on the relationship between these two neighbors; however, my own experience has shown that many enforcement cases that wind up in court start with pre-existing tensions between neighbors. This often is not easily undone; however, in some cases a mediation process between the neighbors may help. More information will be forthcoming on mediation in a subsequent newsletter.

[1] The Johnsons also had complained that the Boyles painted the back of their home (over the re-textured stucco) with a color that was not among the approved colors for the subdivision. The Johnsons withdrew this complaint during the course of the litigation, stating that the color was from the Association’s approved palette but looked different on smooth stucco.

Written by: Carolyn B. Goldschmidt
January 2014