#55-10, Sweepstakes HOA v. Webb, #55-10 (April 26, 2011) (Panel: Burgess, Dubin, Farrar)

The HOA complained that the homeowner was parking a trailer on his lot in violation of the HOA's declaration of covenants.  The homeowner responded that he had been parking trailers on his lot for 21 years with no previous complaint from the HOA and that the homebuilder had even added an additional concrete pad next to his house so that he could park trailers there.  In effect the homeowner argued that the HOA waived its right to enforce the "no-trailer" rule against him.

The panel disagreed and ruled in favor of the HOA.  The panel first noted that the declaration of covenants contained a "no waiver" clause, that read that the "failure by the Association to enforce any covenant or restriction herein shall in no event be deemed a waiver of the right to do so thereafter."  The panel further noted that under prior CCOC decisions and the prevailing rule of law, mere delay in enforcement does not prevent the subsequent enforcement of a rule unless the person trying to prevent enforcement can prove that he has suffered harm or prejudice as a result of the delay.  In this case, the homeowner began to violate the rule as soon as he moved into the home.  The delay did not cause him to violate the rule.  Moreover, he was not harmed by the delay in enforcement.  On the contrary, he benefited from the delay by being able to park his trailers on the lot for over 20 years.

The panel ordered the homeowner to stop parking trailers on the lot without permission and to remove them from the lot within 30 days.