CC&Rs – Enforce or Amend

From the Carpenter Hazlewood Blog (AZ). 2008

Since the [Arizona] Court of Appeals decision in the Johnson v. Pointe case, Enforce or Amend, has become our mantra. We have consistently advised clients and counseled management that with regard to enforcing the documents in a community Association Enforce or Amend, is the Board’s only real, legal choice. Either the Board must take enforcement action or upon Board or member initiative, The Association must act to approve an amendment to the problematic CC&R provision.

Boards so make other decisions besides Enforce or Amend. Should the Board make a resolution to avoid enforcement and to circumvent the proper amendment process, their stop gap measure may hold back a flood or owner concerns or questions. Other Boards play the ostrich and ignore the violation altogether. Still other Association Boards of Directors pick and choose to enforce what they believe to be the most serious or “popular” kinds of violations in hopes that other violations will fade into obscurity.

But all this Enforce or Amend avoidance behavior is risky. Other owners can use or make kclaims on non-uniform enforcement. Owners can and have filed lawsuits claiming damages for the Association’s failure to enforce. Still other owners have sought the protection of the Federal and State Fair Housing laws by alleging that some owners in the community are treated differently and cite inconsistence in enforcement as part of the evidence.

We are sometimes perplexed at the lengths Boards will go with Enforce or Amend avoidance. The simplicity of Enforce or Amend is what makes it so hard. The case does not consider the complexities of enforcement such as cost, severity of the violation or the difficult nature of some homeowners. The Johnson v. Pointe decision does not allow a Board to ignore provisions that no one in the community likes. These are some of the excuses Board members give for their reluctance to Enforce or Amend. But in our experience none of the excuses and none of the avoidance measures matter to the Judge. In situations where the CC&R language is clear and the violation is obvious, any other choice but Enforce or Amend leads to a path of serious risk for the Association