Legal Question in Real Estate Law in California

Enforcement of condo rules
I have owned my condo for over 5 years. During that time, I have kept a boat in my garage. I am not the only owner who keeps a boat in their garage. The condo rules prohibit boats and other recreational vehicles in garages. All during the last 5 years I have not received any complaints formally or informally from my neighbors or the HOA. One of the board members is having a dispute with a homeowner, so the board is now enforcing all of the rules. Can the HOA now force me to get rid of my boat? Isn't there some law if a rule is not applied for some many years, it can not be enforced?

Asked on 12/14/01, 9:38 pm

2 Answers from Attorneys

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

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Re: Enforcement of condo rules

The principle you are thinking of is called 'waiver.' It works something like this: if one party to a contract fails to require observance by the other of one or more contract provisions, this is evidence that the contract provisions are not really meant by the parties to be enforced, and a future attempt to enforce them may be unsuccessful in court.

The application of the principle of waiver is uncertain in any particular situation. The most one can say is that courts are more likely to find a waiver to prevent one party from trapping the other, or to prevent an injustice. The decisions applying waiver are very inconsistent.

In your situation, partly due to the possibility that the presence of your boat was not widely known, and partly because there may be a safety issue, you are unlikely to be able to convince a court that the HOA has waived the no-boats rule.

Answered on 12/17/01, 3:25 pm

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