More details to this question:
CC&Rs clearly state that cars up to two be parked in garage. We have neighbors who have never parked two cars in the their garage but park in front of our home. I had a petition signed by a majority of the homeowners wanting residents to obey the rules. the above neighbor has been cited a dozen times within the last 6 months with no effect. As a homeowner in the community we signed the CC&Rs Bottom line management is not making the effort to enforce the rules. They have stated they will not tow. My wife and I are very frustrated we feel this has a negative impact on our home and it's value. This is a gated community and these are private streets. However they look like a public street
1 ANSWER
Courts give the Board of Directors of an HOA very broad discretion under the "Business Judgment Rule." Unless there is language in your CC&Rs that is very specific and unusual, you probably cannot force the HOA to enforce the rules. However, your CC&Rs probably include which says that any violations of laws, the CC&Rs or rules under the CC&Rs are a nuisance. You can sue the neighbor directly for damages caused by the nuisance, for specific performance of the CC&Rs as a contract, and for an injunction to stop the nuisance. I have done this successfully several times.
One advantage of suing your neighbor directly is that it will not cost the HOA or your other neighbors any money. You will not create animosity between you and the HOA or the other homeowners over your suing them. It wll be just between you and your offending neighbor.
Check your CC&Rs for Alternative Dispute Resolution procedures. Mediation, arbitration or both may be required, either before going to court or in place of going to court.
Check your CC&Rs for an attorney fees clause. If you win, the CC&Rs may provide that you can recover your attorney fees. Even if the CC&Rs don't say so, you might still be able to recover your attorney fees and expenses under the Davis Stirling Act. That means that if the neighbor loses, he pays both sides' attorney fees. It also means that if you lose, you will be paying the fees for both sides. Double or nothing.
There was an appellate decision recently in which the court reduced the attorney fees in a case about a wood floor in a condominium unit from over $1 million to over $700,000.
Another route is a neighborhood mediation service, like SEEDS in Oakland. No lawyers. Just trained experienced professionals trying to resolve neighborhood disputes without going to court. Part of their service is to convince your neighbor to participate. Much cheaper than lawyers.
If you would like to discuss this further, please call me.
Dana Sack
Answered on May 07th, 2015 at 4:11 PM