June 19, 2009

If you have rules, use them or lose them. "Waiver" is a basic idea in contract law. It means that if you regularly let contract violations pass without complaint, you can't later try to enforce those provisions.

This holds true for association rules, says Joel Hilgendorf, an associate at Hellmuth & Johnson PLLC in Eden Prairie, Minn. Though many association declarations contain a non-waiver clause stating that non-enforcement of the association's governing documents isn't a waiver of the right to enforce the governing documents at any time in the future, courts can consider those clauses void.

For example, in Pollard v. Southdale Gardens of Edina, the Minnesota Court of Appeals held that an association's failure to continually enforce its rule may have modified the association's rules, and the non-waiver clause—by itself—wasn't sufficient to alter that outcome.

If you've failed to enforce existing rules, Joel recommends that your association re-adopt a new rule rather than attempting to enforce an old, possibly waived, rule.

Best regards,
Matt Humphrey
President