Real Estate Law
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Yes, you should fight this and in my experience will easily prevail. One, since the 40' height was previously approved and the house was started with the foundation walls in place, the board is not now going to be able to rescind that approval. Any such action would be arbitrary and capricious and would not stand. Two, although an HOA generally has the right to enforce the restrictions in the CC&R's, there are two circumstances where this right is lost...i) where the restrictions have been ignored in the past, and/or ii) where the restrictions have been selectively enforced. If, in spite of the restrictions in the CC&R's, if there are other instances where the situation exists that should fall within the restriction, then one of the foregoing must have occurred, and thus the HOA cannot then legally enforce the restriction against you. I would send the board a letter by certified mail with the foregoing information and let them know if they push this, you will be filing a suit against the HOA and the board members and officers individually for not only court approval, but also actual and punitive damages due to their willful misconduct in light of the facts.
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