Is 8 Years Too Long to Wait?

Since I have been doing blogs on the 5 year statute of limitations on enforcement matters, and also doing blogs (on the California Condo & HOA Law Blog) about people being “bamboozled” into litigation and not understanding the best and worst possible scenarios, another example came to light of how the SOL can be misconstrued.

Years ago in a basketball standard case that ended up in litigation a buyer was mislead by a realtor’s statement that since a basketball standard had been up on the house he wanted to buy for 8 years, the association could do nothing to enforce the restriction in the CC&Rs against basketball standards in the development. I was the attorney for the Association and after trying everything imaginable (even thinking outside the box – see the blogs at California Condo & HOA Law blog) there was no option left but to bring a lawsuit to get the basketball standard removed. The relationship between the owner and his neighbor who complained about the banging against her bedroom wall had deteriorated to serious threats to safety of each other and children that were involved.

The realtor had inside knowledge. It was her son who had previously owned the house (when originally built) and put up the basketball standard. There was no record of complaints about it at that time, or ever before. There had been two owners since who had not even used the basketball standard. This was all key. When the matter came to trial, the owner testified that while he was signing papers in escrow, he noticed that basketball standards were not allowed according to the association CC&Rs (usually people do not even notice these kinds of things but it was important to him). He said that the realtor, who was also present, called the California Association of Realtors from the title office and asked if the association could do anything after 8 years about this basketball standard. The owner said she said she was told by the CAR attorney she talked to that the board could do nothing. The owner signed the papers.

The realtor was called as a witness and repeated this story in court. The problem for her, and her client (the owner in the HOA), was that she apparently failed to tell the CAR attorney that no one had used the basketball standard since her son sold the property years before, so no one but the owners of the home, who did not use the standard, knew about it. It was not in view of the common area or street in the development.

And as soon as the board knew about it, they did do something. So they won in court. The owner was fighting mad and it cost him about $20,000 as he had to reimburse the association’s attorney fees.

So, be advised that “knowledge” of a violation is key to applying the statute of limitations. Visit my other blog at California Condo & HOA Law Blog to see the whole story.

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