Overview

So many homeowners across California open violation notices for conduct their HOAs ignored for a decade. The paint color, the fence height, the boat in the driveway, the tree in the side yard. Half the neighborhood does the same thing, nobody received a letter in years, and now the HOA demands correction within 30, 60, or 90 days. Can the HOA suddenly start enforcing rules or CC&R provisions that it has ignored for years? What are homeowners supposed to do?

California law gives those homeowners several ways to fight back. When an HOA lets a restriction go unenforced long enough and widely enough that owners throughout the community reasonably treat it as dead, the HOA loses the ability to enforce it against anyone. California separately bars HOAs from taking homeowners to court over violations that stood in plain sight for more than five years. And HOAs that revive a restriction against a few targeted owners while continuing to ignore identical violations elsewhere in the community expose themselves to a selective enforcement challenge on top of everything else.

This is not to say that an HOA board can’t try to undo the negligence of prior boards. HOAs can restore a restriction abandoned by prior boards, but only by moving forward rather than reaching backward. That process requires notice to the entire membership that enforcement will resume as of a stated date, followed by even-handed enforcement from that point on. What the reset can’t do is reclaim what the HOA already let go.

Homeowners whose violations sat in the open for more than five years keep that protection no matter what the board announces, so the decade-old tree, the long-standing fence, and the paint color nobody complained about all survive the reset. Conduct that repeats, however, falls on the other side of the line because each new occurrence counts as a fresh violation with its own clock. That’s why a revival notice reaches parking, trash cans, and rentals going forward, but not the conditions homeowners built or planted years ago.

In this Fact Sheet, I explain when years of non-enforcement strip an HOA of the power to enforce a restriction, what evidence homeowners need to prove it, why an HOA can’t sue over a violation it watched for more than five years, how homeowners tell which of their violations the HOA can still reach, what to do the moment a revival letter arrives, and how to respond if the HOA re-adopts the same restriction under a new label and claims a clean slate.

Key Points

An HOA that chose not to enforce a particular restriction for a decade doesn’t get to change its mind and start disciplining homeowners it wishes to target. Homeowners in that position hold defenses that operate independently of each other, and the strongest ones don’t depend on anything the homeowner did. They depend on what the HOA failed to do, year after year, across the whole community. The points below explain how each defense works, which violations the HOA can still reach, and how to respond the week a revival letter lands in a homeowner’s mailbox.

• HOAs lose the right to enforce restrictions they left unenforced for years across the community. Lawyers call this abandonment, and homeowners have to show four things to establish it: (a) the violations stood out in the open where anyone could see them; (b) they spread throughout the development instead of appearing at one home; (c) they continued long enough that owners reasonably stopped abiding by the restrictions; and (d) the HOAs either knew about them or failed to notice through their own inattention. No statute sets a minimum number of years because courts weigh abandonment as an equitable question and judge duration against how visible the violations were and how many owners committed them. Twelve years of 40 repainted homes that three successive management companies drove past every month presents a far stronger case than three years of six violations tucked behind back fences.
  • Abandoned restrictions become unenforceable against every owner in the development, not just against the homeowners who raise the defense. Abandonment attacks the restriction itself instead of attacking an HOA’s case against one owner. This turns your neighbors’ violations into your evidence. HOAs facing this defense can’t salvage the restriction by dropping their claim against one homeowner while pursuing another homeowner down the street, and they can’t enforce against anyone until they revive the restriction properly.
  • Homeowners who violated a restriction that their neighbors obeyed need a different defense. Abandonment depends on what happened across the community as opposed to a few isolated owners. Thus, HOAs that failed to act against one or two unapproved fence while every other owner complied can still enforce their fence restrictions as to the community as a whole. The homeowners who maintained the unapproved fences, however, may still be protected from HOA enforcement through the five-year rule discussed below.
• Code of Civil Procedure 336 gives HOAs five years to sue a homeowner over a violation of the CC&Rs. That deadline comes from three statutes working together. Civil Code 5975 makes the promises recorded in the CC&Rs binding on every owner in the development, which means those promises travel with the property to each new buyer and both HOAs and individual owners can enforce them in court. Civil Code 784 then classifies those recorded promises as “restrictions,” a defined term that covers limitations on the use of property written into a deed, CC&Rs, or a similar recorded document. Code of Civil Procedure 336 then attaches a five-year deadline to lawsuits over violations of those restrictions, and it starts that deadline running when HOAs discovered a violation or should have discovered it through reasonable diligence. [Open, obvious conditions therefore start the clock on the day they appear, and HOAs that watched fences stand in plain view for eight years can’t restart it by claiming that nobody on the current HOA board noticed.]
  • Static conditions become violations once, which puts old ones permanently out of reach for HOA enforcement. Trees planted 10 years ago, fences built in 2014, sheds, paint colors, replaced windows, and driveway extensions all became violations on the day they appeared, and the five-year deadlines attached to them ran from that day. Those deadlines expired long before current HOA boards started mailing letters, and nothing those boards announce restarts them. In short, homeowners in those situations get to keep their trees, fences, sheds, paint colors, windows, and driveway extensions.
  • Repeating conduct is different and becomes a new violation every time it happens. Every time homeowners park in prohibited spots, leave trash cans out past the deadline, book short-term rentals when applicable restrictions apply to them, or bring pets into restricted areas, those occurrences start their own five-year deadlines. HOAs that resume enforcement reach all of that conduct going forward, and homeowners who assume a decade of tolerated parking protects them tomorrow will lose that argument.
  • Conditions that keep producing new damage remain contested. Tree roots that continue lifting sidewalks or intruding into common area plumbing arguably generate fresh harm each day, week, month, and year. They don’t qualify as one completed violation, which is why the fact that the tree might’ve been planted 15 years ago won’t be relevant to insulate the homeowner from the damage the tree is causing to the common area.
• HOAs cannot resume enforcement against a few owners while ignoring identical violations elsewhere. HOAs that announce renewed enforcement and then mail letters only to the three owners who criticized the HOA board at the last meeting create an entirely new problem for themselves. A selective enforcement defense requires no proof that anyone abandoned anything or that any deadline expired. It requires proof of uneven application of the same restriction, which many homeowners establish by photographing the untouched violations up and down their streets and setting those photographs against the letters in hand. [For the full breakdown of this defense, read my article, “Selective Enforcement in California HOAs: What It Is and How Homeowners Can Fight Back,” and for the evidence side of it, read my Fact Sheet, “How to Prove Selective Enforcement in California HOAs.” You can also watch one of our two HOA HELL podcast episodes on the subject.]

• HOAs can revive abandoned restrictions by telling the entire membership that enforcement resumes on a stated future date. While no section of the Davis-Stirling Act prescribes this procedure, it is one that courts have supported. HOA boards can revive previously abandoned restrictions by sending written notice to every member of their intent to start enforcing the provision at issue on some future date. But even so, those resets reach forward and no further. This means that homeowners whose static violations already outlasted the five-year waiver discussed above are not going to be bound by the future enforcement demand.
• Re-adopting an abandoned restriction as a brand-new rule buys HOAs nothing. Some bad HOAs try to get around the 5-year rule by passing a new rule and treating the fresh adoption date as a clean slate that erases 10 years of silence. Those efforts, however, fail for several reasons. First, Code of Civil Procedure 336 measures its deadline from when HOAs discovered the violation, and reprinting the same prohibition under a new heading doesn’t unwind what those HOAs knew a decade earlier. More importantly, Civil Code 4350 makes reasonableness a condition of validity for every operating rule, and rules adopted as an end-run around a valid waiver will rarely meet the objective reasonableness requirement. [I break down the full range of grounds that render HOA rules unenforceable in my Fact Sheet, “When Are HOA Rules Illegal in California?”]
• If your HOA is attempting to enforce a restriction it ignored for years, call the HOA attorneys at MBK Chapman. The HOA attorneys at MBK Chapman are respected industry-wide as the most knowledgeable homeowner-side HOA attorneys in California, and they have extensive experience dismantling enforcement campaigns built on abandoned or waived restrictions that HOAs have no right to enforce. Whether your HOA is reaching backward for a condition that stood in plain view since before the current directors took office, targeting a handful of owners while ignoring the rest of the development, or dressing up an abandoned provision as a newly minted rule, MBK Chapman can help.

An HOA that ignored a restriction for years can’t undo that history by mailing letters. Abandonment can strip the restriction entirely, the five-year deadline can bar the lawsuit, and uneven enforcement can sink the whole campaign. Static violations that sat untouched past five years stay beyond reach permanently, while repeating conduct starts a fresh clock every time it occurs. Homeowners who know which category they fall into know exactly how much their HOAs can still do to them.

FAQs

About Michael Kushner

Michael Kushner is a California attorney with over 30 years of experience representing homeowners in disputes with their HOAs. He is widely regarded as California’s leading homeowner-side HOA attorney, and has built one of the state’s most prominent law practices dedicated to holding HOAs accountable under the Davis-Stirling Act and California law.

In addition to his law firm’s work, Michael is a recognized lecturer, author, and the host of the hit HOA HELL podcast, where he provides homeowners living in HOA-governed communities with clear, practical strategies for dealing with bad HOAs. He’s also the author of the best-selling book, HOA HELL | California Homeowners’ Definitive Guide to Beating Bad HOAs, which has become a go-to resource for both homeowners seeking real-world solutions to their HOA disputes, as well as those good HOA board members who are interested in doing a good job.

About MBK Chapman Fact Sheets

Homeowners searching for answers online will often come across articles that appear authoritative, but are actually written as search-engine marketing content rather than by an experienced HOA lawyer. These pieces tend to prioritize keyword density over clarity, accuracy, or legal context, which often leaves homeowners more confused than informed.

At MBK Chapman, our Fact Sheets are part of our HOA Law Library and are written by Michael Kushner, an HOA lawyer with decades of hands-on experience representing California homeowners. In fact, Michael Kushner is the HOA lawyer who pioneered the systems and strategies used by some of California’s most successful homeowner-side HOA law firms.

Each Fact Sheet is deliberately concise, statute-based, and designed as a quick-reference guide to help homeowners understand key HOA laws and enforcement rules at a glance.

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