California HOA CC&R Enforcement Demand Letter | Selective Enforcement & Rule Changes

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Selective Enforcement

HOA enforcing rules against you while ignoring identical violations by other homeowners—a form of discrimination that can void the enforcement action.

Unequal Treatment Documentation Defense Bad Faith

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Improper Rule Changes

Board adopting operating rules without proper notice, member input, or in violation of the governing documents under Civil Code 4340-4370.

28-Day Notice CC 4360 Member Input Reversal

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Void or Unenforceable Provisions

CC&R provisions that violate California law, public policy, or contradict statute are void and cannot be enforced against homeowners.

Illegal Restrictions Public Policy Preemption Defense

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HOA Failing to Enforce

HOA refusing to enforce CC&Rs against a neighbor whose violations affect your property—you may have standing to enforce directly under CC 5975.

Neighbor Violations CC 5975 Direct Enforcement Nuisance

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Board Overreach

Board exceeding its authority, creating rules beyond its power, or acting outside the scope of the governing documents.

Ultra Vires Authority Limits CC&R Hierarchy Challenge

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Architectural Standard Changes

HOA applying new architectural standards retroactively or changing standards without proper procedures.

Retroactive Rules Grandfathering Due Process Notice

Understanding CC&R Enforcement in California

CC&Rs (Covenants, Conditions, and Restrictions) are the primary governing documents of a homeowners association. While HOAs have authority to enforce CC&Rs, that authority is not unlimited—California law provides significant protections for homeowners.

                Key Protection: Under Civil Code 5975, any owner may enforce the governing documents—meaning you can sue both the HOA for failing to enforce and individual violators for their violations. This is a powerful tool when the HOA won't act.
            

Applicable Statutes

Civil Code 5975

Grants enforcement rights to both the HOA and individual owners. Prevailing party entitled to reasonable attorney's fees. Requires IDR/ADR before filing suit.

Civil Code 4340-4350

Operating rules: Defines what rules the board can adopt and the limitations on rule-making authority. Rules cannot conflict with CC&Rs or law.

Civil Code 4360

Rule change procedures: Requires 28-day notice to members before adopting, amending, or repealing operating rules. Members can demand reversal vote.

Civil Code 4365

Rule reversal: Members representing 5% can call special meeting to reverse rule change. Simple majority can overturn board's rule.

Civil Code 5850-5855

Discipline procedures: Schedule of fines must be distributed annually. Hearing required before imposing discipline or fines.

Civil Code 4350

Rule limitations: Operating rules must be reasonable, not arbitrary, and applied uniformly. Cannot contradict governing documents or statute.

The Governing Document Hierarchy

California law establishes a clear hierarchy of HOA governing documents:

1. California Law: Statutes override all governing documents—any provision violating law is void
2. CC&Rs: The recorded declaration—highest authority after statute
3. Articles of Incorporation: Corporate formation documents
4. Bylaws: Govern board procedures and meetings
5. Operating Rules: Day-to-day rules adopted by the board—lowest authority

Important: A lower-level document cannot contradict a higher-level one. If an operating rule conflicts with the CC&Rs, the CC&Rs control. If the CC&Rs violate California law, the law controls.

Selective Enforcement Defense

Selective enforcement—enforcing rules against some owners while ignoring identical violations by others—is one of the most powerful defenses against HOA enforcement actions.

Elements of Selective Enforcement

Same Violation: Other owners committed the same or substantially similar violations
HOA Knowledge: The HOA knew or should have known about other violations
No Enforcement: HOA took no action against other violators
Enforcement Against You: HOA is enforcing against you specifically

Building Your Selective Enforcement Defense

Document Everything: Photograph similar violations throughout the community
Request Records: Get violation notices and enforcement history for comparable properties
Timeline: Note how long other violations have existed without enforcement
Witness Statements: Gather statements from neighbors who know of other violations
Board Minutes: Review meeting minutes for evidence of selective treatment

                Legal Effect: Successful selective enforcement defense can completely bar the HOA from enforcing the violation against you. Courts have held that an HOA that fails to uniformly enforce its rules waives the right to enforce them selectively.
            

Limits of Selective Enforcement Defense

Does not apply if violations are meaningfully different
HOA can begin consistent enforcement going forward (but cannot retroactively penalize you)
Does not protect against violations that cause immediate safety hazards
May not apply if other violations were unknown to the board

Challenging Improper Rule Changes

Rule Adoption Requirements (CC 4360)

Before the board can adopt, amend, or repeal an operating rule, it must:

28-Day Notice: Provide written notice to all members at least 28 days before adoption
Include Text: Notice must include the text of the proposed rule change
Explanation: Must describe the purpose and effect of the rule
Member Input: Must provide reasonable opportunity for member comment
Board Meeting: Rule must be adopted at a properly noticed board meeting

Member Reversal Rights (CC 4365)

If the board adopts a rule you disagree with, members can reverse it:

Petition: Members representing 5% of the association can demand a vote
Special Meeting: Association must call a special meeting within specified timeframe
Simple Majority: Majority of votes cast can reverse the rule
Immediate Effect: Reversal takes effect immediately upon vote

Rules the Board Cannot Adopt

Rules that conflict with the CC&Rs or other higher governing documents
Rules that violate California statute or public policy
Unreasonable or arbitrary rules
Rules that exceed the board's delegated authority
Rules that discriminate against protected classes
Rules that restrict protected activities (solar panels, EV charging, flags, etc.)

Time Limit: Challenge rule changes promptly. While there's no specific statute of limitations for challenging rules, delays can be used to argue acquiescence or laches (unreasonable delay).

Sample Selective Enforcement Demand Letter

[Your Name]
[Your Address]
[City, State ZIP]
[Date]

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED

[HOA Name]
[Management Company, if applicable]
[Address]
[City, State ZIP]

Re: Selective Enforcement Defense and Demand to Withdraw Violation Notice

Dear [HOA Board/Property Manager]:

I write in response to the violation notice dated [date] concerning [describe alleged violation]. I am formally asserting a selective enforcement defense and demand that the Association withdraw this notice immediately.

Selective Enforcement: The Association has failed to uniformly enforce [the rule at issue] against all owners. Specifically: [Describe other violations, e.g., "Units 101, 205, and 312 have maintained identical [describe violation] for [time period] without receiving any violation notices"; "The attached photographs document at least [number] other properties with the same condition"].

Under well-established California law, an HOA that fails to uniformly enforce its rules waives the right to selectively enforce them against individual owners. See Liebler v. Point Loma Tennis Club (1995) 40 Cal.App.4th 1600; Cohen v. Kite Hill Community Ass'n (1983) 142 Cal.App.3d 642. The Association's selective enforcement violates the implied covenant of good faith and fair dealing and constitutes arbitrary and capricious action.

Demand: I demand that the Association: (1) Immediately withdraw the violation notice dated [date]; (2) Remove any record of this alleged violation from my owner file; (3) If the Association wishes to enforce this rule going forward, do so uniformly against all owners.

I further request IDR pursuant to Civil Code 5900 to discuss this matter. Please contact me within 10 days to schedule a meeting. If the Association proceeds with enforcement, I will defend vigorously and seek attorney's fees as the prevailing party under Civil Code 5975.

Sincerely,

[Your Signature]
[Your Name]

Enclosures: Photographs of comparable violations; Request for IDR meeting

Sample Rule Change Challenge Letter

[Your Name]
[Your Address]
[City, State ZIP]
[Date]

[HOA Name]
[Board of Directors]
[Address]
[City, State ZIP]

Re: Challenge to Operating Rule Adopted [Date] – Violation of Civil Code 4360

Dear Board of Directors:

I write to formally challenge the operating rule adopted by the Board on [date] regarding [describe rule]. This rule was adopted in violation of California Civil Code 4360 and is therefore invalid and unenforceable.

Procedural Violations: The rule adoption violated Civil Code 4360 as follows: [Describe specific violations, e.g., "The Association provided only 14 days' notice rather than the required 28 days"; "The notice failed to include the text of the proposed rule"; "No opportunity for member comment was provided"; "The rule was adopted without a proper board vote at a noticed meeting"].

Substantive Violations: Additionally, the rule is invalid because: [If applicable, describe, e.g., "It conflicts with Section [X] of the CC&Rs"; "It violates Civil Code [section] regarding [protected activity]"; "It is unreasonable and arbitrary because [explain]"].

Demand: I demand that the Board: (1) Immediately rescind the rule; (2) If the Board wishes to adopt a similar rule, follow all procedures required by Civil Code 4360; (3) Cease any enforcement actions based on this invalid rule.

Alternatively, I am gathering signatures for a member petition to reverse this rule under Civil Code 4365. Please be advised that members representing 5% of the Association intend to demand a special meeting for a reversal vote if the Board does not voluntarily rescind.