Question:
Our Mutual (HOA) has declared that enforcement of the CC&Rs is “discretionary” in relation to my four-plex condo unit’s request that a combined bush/fence barrier which must be removed/repaired and is in the common area.
The CC&R’s clearly state that the Mutual is responsible for repairing and/or replacing landscaping and fencing (among other things). The Mutual Board is refusing to replace or even repair fencing that has been deemed in great need of repair or replacement.
The Mutual’s lawyer led a meeting between our condo owners and the Mutual Landscape Committee during which the lawyer insisted that the CC&Rs are “discretionary” and do not need to be followed if the Mutual Committee finds that it does not want to spend funds on our common area
– Katha
Answer:
Hi Katha,
In California, an HOA (or Mutual) must enforce its CC&Rs in accordance with its governing documents and state law. The board cannot arbitrarily decide which provisions to follow, particularly when it comes to maintaining common areas. California Civil Code Section 4775 specifically states that the HOA is responsible for maintaining, repairing, and replacing common area elements unless the CC&Rs indicate otherwise. If the CC&Rs clearly assign responsibility to the HOA for landscaping and fencing, the board cannot simply refuse to act based on discretionary enforcement.
If the board refuses to act, affected homeowners can take several steps. First, review the CC&Rs and any maintenance agreements to confirm the HOA’s responsibilities. Then, formally request maintenance in writing, citing the relevant provisions. If the board continues to deny responsibility, homeowners may seek enforcement through Internal Dispute Resolution (IDR) or Alternative Dispute Resolution (ADR) as required by California law.
Disclaimer: We are not lawyers. The information provided on this website does not constitute legal advice.
