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  1. #1
    Join Date
    Sep 2010
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    1

    Default Does HOA Non-Enforement of Rules Prevent Enforcement

    My question involves real estate located in the State of: Arizona, but I'd be interested if similar laws in other states cover what I'm talking about.

    In my homeowners association, I'd say about 1/3 of the homeowners have citrus trees that range between 10-20' tall. Obviously to get this tall, the association had to let this happen for YEARS. I bought a house 2 years ago with 3 citrus trees and figured there was no issue with them. Yes, I probably should have read the by-laws from cover to cover, but I didn't do that.

    Now the association sent a letter to all homeowners stating the CC&Rs state that only dwarf citrus trees less than 6' high are permitted. To try to trim a 10'-20' tree down to 6' would probably kill it, and I would have to pay for both the initial trimming and probably an eventual tree removal. The reason they gave was to prevent the proliferation of roof rats, although I can make several arguments that this effort is probably an exercise in futility.

    But I seem to recall some principle of the law that says that is some governing body like a homeowners assn allows a practice like this for an extended period of time where it would be an extreme detriment to homeowners to change course and suddenly start enforcing the by-laws as written again, the fact that they let things go ends up becoming the new de-facto standard and that they cannot force us to get rid of our trees.

    Can anyone help point me to where I might find such a law codified or stated anywhere that I can point our association to, letting them know that homeowners can fight and win against their draconian enforcement?

    Thanks.

  2. #2
    Join Date
    Sep 2005
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    Default Re: Does HOA Non-Enforement of Rules Prevent Enforcement

    I suspect you've read about estoppel,
    Quote Quoting Camelback Del Este Homeowners v. Warner, 156 Ariz. 21, 749 P. 2d 930 (1988)
    Estoppel has three recognized elements: 1) acts inconsistent with the claim afterwards relied on; 2) action by the adverse party on the faith of such conduct; 3) injury to the adverse party resulting from the repudiation of such conduct. Holmes v. Graves, 83 Ariz. 174, 177, 318 P.2d 354, 356 (1957). Our courts have stated, "[a] correlative essential element of estoppel is that one seeking its protection must have lacked knowledge, and the means of acquiring knowledge, of the facts relied upon. A party's silence will not operate as an estoppel against it where the means of acquiring knowledge were equally available to both parties." Honeywell Inc. v. Arnold Construction Co., Inc., 134 Ariz. 153, 158, 654 P.2d 301, 306 (App. 1982).
    I am skeptical that an estoppel defense would succeed, as it would appear you knew or should have known of the rule and refraining from pruning your trees would be better described as inaction taken in defiance of the rule than action taken in reliance. Have the full facts reviewed by a local real estate lawyer.

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