Hi key,

He will obviously argue the statute of limitations if he has a remote possibility of winning. However, that would stop me from moving forward against him and here is why.

Arguably, each and every day that he is in non-compliance is a new infraction. On the day he installed his mailbox, yes, he violated that day because on that day he had a non-conforming mailbox. The next day, he also kept a non-conforming mailbox on his driveway. And day three, four etc. His own admission that he has had a violating mailbox for 3+ years can come bite him in the butt possibly because he is admitting, arguably, to 365X3 violations, at a minimum.

And I would further argue that your by-law secton: "Failure of the Asociation or by an Owner to enforce any covenant or restriction herein contained shall in no event by deemed a waiver of the right to do so thereafter" makes clear that each day is another day, and same can be enforced.

You don't mention what the penalties are, if it is only specific performance or if there are fines for each non-compliance. In my community, for instance, we have a rule about leaving your garbage can road side after pick up. Our pick up is Monday morning. One time, we still hadn't taken them back down to the house by Wed. (oops, lol). Wed. we took them in. A few days later, we were 'ticketed' for $17. I am sure had I continued to leave it out there, I may have gotten another ticket for another $17. And, arguably they could have tried to nail me for each day. Unpaid fines and dues are an automatic lien on the property when sold. Obviously, I paid it lickety split - I was in the wrong (even though I think it a stupid rule :)

If it were me, I would notify him that each day is a violation (let him dispute that) and that while your future claims for violations for each and every date more than 3 years+ ago may be barred, each violation he continues to engage in from 3 years and forward, are still valid. If you sue him, of course, you get 3 years preceding that date of the filing AND all ongoing dates. Your bylaws may also indicate that homeowners must pay HOAs legal fees if they lose the case, which you can remind him of....Therefore, he will have to be extremely confident he will win, to move forward and not compromise on the issue.

Another analogy: I have a monthly 5 year lease at $1000/mo. From day one, I only paid $900/month. Statute of limitations is 3 years (say). In year 4, the landlord tells me I owe that missing $100/mo for the past 4 years and of course or year 5. Can I say, nope the SOL was 3 years, I started breaching 4 years ago, therefore I don't ever have to pay you the full $1000? I 'd lose. Arguably, I might be able to defeat a claim or the monthly breaches that occured in year 1, since those breaches were over 3 years ago, but year 2-4 are still within the SOL and year five is still open. I did not CHANGE the contract simply by not complying with it.

I'd fight fight fire with fire and scare the bejeezus out of him - he may think twice next time.

Hope this helps to clarify.

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