Non-Waiver Clause in CC&Rs

Question: We purchased a black door for our home in Glendale. We sent a photo of this black door along with our application for approval to the Architectural Review Committee (“ARC”) of our HOA. The ARC denied our application because the CC&Rs require that doors be earth-toned colors. We then met with the ARC and showed them photos of nine other black, or mostly black, doors in our community. The ARC still denied our application. The chairman of the ARC admitted, however, that this “black door” CC&R had never been enforced before we applied for approval. Can the ARC enforce a CC&R that has never been enforced?

Answer: The ARC of an HOA cannot fail to enforce violations of a specific CC&R, and then later selectively enforce that CC&R against an individual homeowner, unless the CC&Rs have a non-waiver clause. 225 Ariz. 533. In other words, if there is a non-waiver clause in the CC&Rs, a CC&R that has never been enforced can be enforced in the future. Therefore, if your CC&Rs have a non-waiver clause, the ARC can deny your application for a black door, even if there have been prior violations of the CC&R requiring earth-toned color doors. Many CC&Rs have a non-waiver clause, so you must review your CC&Rs.

Note: Even if the CC&Rs have a non-waiver clause, the CC&Rs will not be enforceable if all of the CC&Rs have been abandoned by the failure to enforce any of the CC&Rs for many years.

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