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CalAttorney2, Lawyer
Category: Real Estate Law
Satisfied Customers: 10215
Experience:  I am a civil litigation attorney with experience representing HOAs, homeowners, businesses and others in real estate matters.
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Our HOA appears to believe they have oversight over

Customer Question

Our HOA appears to believe they have oversight over everything we plant on our property. They have even passed an ordinance prohibiting growth of vegetables in the front lawn, this despite the fact that we are xeriscaping, can demonstrate considerable water savings, and have a beautiful garden to boot. I believe they are out of compliance with public policy. They have also continually watched us, come onto our property, and scrutinized everything we do because we do things differently then others. They do not appear to be asking the same level of compliance from our neighbors, one of whom re-landscaped their front lawn without telling us (as required by the CCR's), and they even destroyed some of our plants without telling us. We would love a suggestion on how to deal with this. I can document their unfair practices. Help would be welcome. Thanks, Drew
Submitted: 5 months ago.
Category: Real Estate Law
Expert:  CalAttorney2 replied 5 months ago.
Dear Customer,I am sorry to learn of this situation.While some of your arguments are not going to be helpful to your situation (water savings, subjective opinion as to the appearance or beauty of your yard, or the fact that our yard looks considerably different from others in the community (which may be harmful to your argument - depending on the CC&Rs and associated rules)).You do raise one important issue that may be helpful to you here.If the Association has singled you out for enforcement action, but is refusing to enforce the same rules against other owners for the same or similar violations, you can defend against enforcement actions by claiming that they are engaged in "arbitrary and capricious" enforcement (also called "selective enforcement"). What this means is that even if your property is in violation of the rules and/or CC&Rs, but the HOA is not enforcing the rules against others, then they cannot enforce them against you.The other issues you raise, trespass, possible rule making violations (you say that you did appear at the meeting, but were shouted down - this doesn't necessarily lead to a violation of the rule making process), and destruction of property (even if you are in violation, the remedy is to enforce through assessments and liens, then court action, they cannot destroy your landscaping) - can all be addressed in litigation, usually small claims action.But thinking long term, if you are facing a situation where your landscaping violates the current rules of the HOA (or your HOA is likely to pass another rule to make it more clear that your landscaping is not acceptable), you may want to deal with that situation. Living in a common interest development means that you lose a great deal of discretion in how you get to present your property (including paint schemes, remodeling, and landscaping) all dependent upon the governing documents specific to your association.Short of filing a lawsuit, you can try to mediate the dispute with them - contact your local bar association and request referrals to mediators, a third party neutral can often help you reach a mutually agreeable resolution. Use the bar association's referrals to contact a mediator or two, the mediator will then contact the other party to set up a mediation session, and you can go from there - hopefully resulting in a formal or written settlement agreement, and save yourself the time and expense of litigation.

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