Last updated: October 2026
An association’s power to enforce its CC&Rs is real but conditional. Recorded restrictions carry a presumption of reasonableness and are enforceable as equitable servitudes, and a prevailing association can usually recover its attorney fees. What defeats enforcement is almost never the rule itself — it is the association’s own record: a restriction ignored for years, applied to one owner and not another, or enforced without the notice and hearing the statute requires. Bay Legal, P.C. advises California boards on building enforcement programmes that hold up.
Definition: CC&Rs are covenants recorded against every lot in a common interest development, binding on all current and future owners as equitable servitudes.
What makes a restriction enforceable?
Recording, and reasonableness. Under Civil Code section 5975, CC&Rs are enforceable as equitable servitudes, and in Nahrstedt v. Lakeside Village Condominium Association (1994) 8 Cal.4th 372 the California Supreme Court held that a recorded use restriction carries a presumption of reasonableness. A challenger must show the restriction is unreasonable as applied to the development as a whole, not merely burdensome to them.
That presumption is the association’s strongest asset and it is frequently squandered. It attaches to the restriction, not to the enforcement — so a reasonable rule enforced unreasonably still fails.
Operating rules adopted by the board sit lower in the hierarchy and carry no such presumption. A board relying on a rule rather than a recorded covenant is on materially weaker ground, and a rule that conflicts with the CC&Rs is generally unenforceable to the extent of the conflict.
What must you do before imposing a fine?
Give notice and hold a hearing. Civil Code section 5855 requires written notice of the alleged violation, the proposed discipline, and the member’s right to be heard, followed by an opportunity to address the board before discipline is imposed. The decision must be communicated in writing.
A fine levied without that process is open to challenge on procedure alone, whatever the merits of the violation — and the hearing record is the first document produced when an owner disputes a penalty. Associations that treat the hearing as a formality tend to discover this at the point they can least afford to.
Why does uniform enforcement matter more than the rule?
Because selective enforcement is the defence that most often succeeds, and the evidence for it comes from the association’s own records.
- Enforcing against one owner and not another in comparable circumstances invites the argument that the association is acting arbitrarily.
- Long non-enforcement can amount to waiver. A restriction ignored for a decade is harder to revive against a single owner than to enforce against everyone from a stated date.
- Inconsistent penalties for comparable violations undermine the fine schedule generally, not just in the case at hand.
- Board minutes are discoverable and they usually record the prior complaints that went nowhere.
Where a board wants to resume enforcing a lapsed restriction, the defensible route is a notice to all owners announcing that enforcement will resume from a stated date, applied uniformly thereafter. That converts a waiver problem into a clean start.
What can an association actually recover?
Compliance, and usually costs. Civil Code section 5975 provides that in an action to enforce the governing documents, the prevailing party is awarded reasonable attorney fees and costs. That provision is the practical engine of HOA enforcement, and it runs in both directions — an association that loses pays the owner’s fees.
Injunctive relief is the primary remedy: an order requiring removal of an unauthorised modification, cessation of a prohibited use, or compliance with a maintenance obligation. Damages are available where the violation caused quantifiable loss, though in most enforcement matters the association wants the conduct stopped rather than compensated.
Before any of that, the statutory dispute resolution steps apply. Internal dispute resolution under sections 5900 to 5920 comes first, then alternative dispute resolution under sections 5925 to 5965 before most enforcement actions. A party who unreasonably refuses ADR may be denied fees even on a win, which for an association is the difference between an enforcement action that pays for itself and one that does not.
Which restrictions can you not enforce?
California overrides CC&Rs in a growing list of categories. A board enforcing a restriction in any of these is likely to lose, and may pay the owner’s fees for the privilege.
| Category | Position | Authority |
|---|---|---|
| Solar energy systems | Associations may not effectively prohibit installation | Civ. Code § 714; § 4600 |
| Electric vehicle charging | Reasonable restrictions only; outright bans are void | Civ. Code § 4745 |
| Accessory dwelling units | Restrictions that unreasonably prevent an ADU are void | Civ. Code § 4751 |
| Rental restrictions | Rental caps and minimum lease terms are limited by statute | Civ. Code § 4741 |
| Drought-tolerant landscaping | Cannot be prohibited during a declared drought | Civ. Code § 4735 |
| Personal agriculture | Cannot be unreasonably restricted in backyards | Civ. Code § 4750 |
| Noncommercial signs and flags | Protected within defined limits | Civ. Code §§ 4705, 4710 |
What if the CC&Rs are obsolete?
Amend them, and if the approval threshold makes that impossible, petition the court. Civil Code section 4275 allows an association to ask the court to approve an amendment where the CC&Rs set a voting threshold the association cannot practically meet despite majority support. It is a recognised route for developments stuck with provisions written decades ago.
Architectural review is separately regulated. Civil Code section 4765 requires a fair, reasonable, and expeditious procedure, a written decision, and a right of appeal. A denial without reasons is difficult to defend, and the appeal record is what a court examines.
Who advises boards at Bay Legal?
Managing attorney Jayson R. Elliott leads the firm’s HOA practice. Lead litigation attorney Evan Livingstone heads the litigation group, which handles contested enforcement. Clarence Olson practises in real estate law.
Scope. Bay Legal, P.C. represents both associations and homeowners, though never both sides of the same dispute. Acting for homeowners means the firm knows which enforcement decisions get challenged and on what grounds, which is useful when making one.
Bay Legal, P.C. serves associations statewide from offices in Palo Alto and Los Angeles.
Frequently Asked Questions
Can we enforce a rule we have not enforced for years?
Not easily against one owner. Long non-enforcement can amount to waiver, and the board’s own minutes usually record the earlier complaints that went nowhere. The defensible route is a notice to all owners that enforcement will resume from a stated date, applied uniformly from then on.
Do we have to hold a hearing before fining someone?
Yes. Civil Code section 5855 requires written notice of the alleged violation and the proposed discipline, an opportunity for the member to be heard, and a written decision. A fine imposed without that process can be set aside on procedure alone, whatever the merits of the violation.
Can the association recover its attorney fees?
Usually. Civil Code section 5975 awards reasonable attorney fees and costs to the prevailing party in an action to enforce the governing documents. It runs both ways — an association that loses pays the owner’s fees — and refusing to participate in ADR can forfeit the award even on a win.
Is a board rule as enforceable as a CC&R?
No. Recorded CC&Rs carry a presumption of reasonableness under Nahrstedt; operating rules adopted by the board do not, and sit lower in the governing document hierarchy. A rule conflicting with the CC&Rs is generally unenforceable to the extent of the conflict.
Can we restrict rentals in our community?
Only within statutory limits. Civil Code section 4741 constrains rental caps and minimum lease terms, and many associations are still enforcing restrictions adopted before those limits existed. Review any rental provision against the current statute before acting on it.
What is selective enforcement and how do we avoid it?
Enforcing a restriction against some owners and not others in comparable circumstances. It is the defence that most often defeats enforcement, and the evidence comes from the association’s own records. Consistent application, documented decisions, and a uniform fine schedule are the protection.
Related Questions
Can we fine an owner for a tenant’s violation?
Generally yes, since the owner remains responsible for compliance, but the CC&Rs should say so and the notice and hearing requirements still apply to the owner.
Do we need a lawyer to send a violation notice?
Not usually, but the notice has to satisfy section 5855. A defective notice is the most common reason an enforcement action fails before its merits are considered.
What if an owner ignores the hearing?
The board may proceed, provided proper notice was given and the record shows it. Document the notice and the non-attendance carefully.
Can we record a lien for unpaid fines?
Fines are treated differently from assessments for lien purposes. Take advice before recording — an improperly recorded lien creates liability rather than recovery.
Talk to a California HOA attorney
Enforcement usually fails on the association’s own record rather than on the rule. To review an enforcement programme, a fine schedule, or a specific violation, call the office nearest you or email intake.
Bay Legal, P.C. — serving California statewide
Northern California office
667 Lytton Ave Ste 3, Palo Alto, CA 94301
(650) 668-8000
Southern California office
3211 Cahuenga Blvd W Ste 212, Los Angeles, CA 90068
(213) 668-8000
Intake: intake@baylegal.com
Fax: (650) 963-0041
Website: https://baylegal.com
This page is general information about California law and does not constitute legal advice or create an attorney-client relationship. For advice on your specific situation, contact a licensed California attorney.