Let's say an HOA has been very lax in enforcing its CC&Rs in the past. There are restrictions about fencing, but many owners got and received variances in the past and have put up fences that don't comply. There are many people keeping farm animals like alpacas, emus, bulls, pigs, etc. even though all such animals are not allowed.

This has been going on for decades.

What legal construct is it called if and when an HOA starts enforcing these things all of a sudden when the variances were issued for so many others and never were the animals enforced?

Did the HOA set a precedent for itself or open itself up to lawsuits since people are now being treated differently than they have for so many years.

Would a person that's been denied a fence, or denied keeping an animal have any recourse? What if the animals are denied for one person but the next door neighbor has the same animals and has for 10 years?

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    Just to be really clear: the HOA has been going through all of the proper routines for considering and granting/denying exemptions thus far, rather than having simply failed to act or acknowledge things one way or another? Jul 13, 2019 at 6:02
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    In some cases the HOA failed to answer a request in a timely manner and the fences were auto-granted. In others, variances were granted to nearly everyone.
    – mark b
    Jul 15, 2019 at 15:00

1 Answer 1


In general this is referred to as "discretion of authority."

An HOA has to adhere to its declarations and bylaws, and government laws can proscribe what an HOA can do (e.g., housing discrimination is not legal in the U.S., even for an HOA). But as long as it follows its own rules it is presumed to be acting within its rights as a private entity. And it is not uncommon for HOA declarations to give its directors significant discretion.

When it comes to government entities there is a common term "abuse of discretion" that can act as a judicial check on how an office exercises its authorized discretion. (The term seems to appear most frequently in the context of appeals of judicial actions to higher courts. But it also appears in legislation that applies to police and other government officials.)

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