Altitude Community Law recently successfully prevailed in a case that raised the issue of whether a requirement to paint is an ongoing obligation therefore making the one year statute of limitations inapplicable to any enforcement action taken by the Board. In this case the homeowner refused to paint his new garage door so it matched the rest of his home. The Association was generous in allowing him additional time to correct the matter and when the decision was made to file suit one of the defenses the owner used against the Association was that it had waited too long and thus was barred from filing the action. The statute the owner relied upon states that any action regarding the enforcement of any building restriction or to compel the removal of any building or improvement must be commenced within one year from the date the association knew or should have known of the violation. Failure to do so acts as a bar to filing suit after the one year. That defense was denied at the trial level and when it was appealed to District Court it was also denied. The court held that the failure to paint is an ongoing continuous violation and thus not subject to the statute of limitations.
This is not a departure from what we in the industry thought was the case all along, however, it’s nice to see a trial court judge confirm those beliefs. The same result should hold true for issues involving pets and parking. Each day is a new violation and thus the one year statute of limitations will never be successfully applied.