TOO MANY PETS

Q. 
I have two dogs as pets and the CC&Rs of my association allow only one. Is there anything I can do short of moving?

A. 
Your alternatives are to move or give up one of your pets. The lesson is clear. Read the governing documents before you purchase a home within an association. Top

BOARD WON'T FIX LEAKY ROOF

Q. 
We live in a three story condominium complex that is over twenty years old. The roof needs replacement, but the association does not have the funds to replace it. It has been patched numerous times, over several years, but still leaks when it rains. Our roofer tells us that patching will only slow the water down and that we must replace the roof. This has been confirmed with a second opinion. The board has attempted three times to get a special assessment passed, but has failed to get one approved due to a combination of indifference and people on the lower floors refusing to pay the cost. Our ceiling, walls and furniture has been damaged. What can be done?

A. 
The board can approve an emergency assessment where there is a threat to personal safety on the property. While your situation may be a legal stretch, the board should immediately discuss the option with its legal counsel. Absent a special assessment and repair, your option is to sue the association for failing to maintain the common area. Top

CAN A SINGLE FAMILY HOME BE A CONDOMINIUM?

Q. 
We recently purchased a single family detached home in a subdivision. After our purchase, we read the CC&Rs. They indicate that we purchased a condominium. Is this possible?

A. 
Yes. A single family detached home can be a condominium. A condominium is a legal form of ownership. It is not an architectural style or building description. In these types of developments, “your lot” is probably exclusive use common area.

Developers often develop single family detached homes as condominiums because it allows them to provide smaller private yards than would be permitted with a planned development type of subdivision. Top

CONSTRUCTION DEFECTS

Q. 
We live in a community of new single family homes that has an association and common area. Behind our home is a common area hillside that is draining water onto our lot because of an inadequate drainage system. The water is starting to lift our patio slabs and do other damage. We are concerned that with a heavy season of rain, the damage will become very serious. Our homeowners association refuses to sue the developer for construction defects because our home is the only one significantly impacted by the flow of water. Are we out of luck?

A. 
No. If the association refuses to protect your rights, an experienced construction defect attorney can file a derivative suit to protect those rights. You should consult an attorney immediately because you can lose your rights if you wait too long. Top

NO COMMON AREA

Q. 
Our homeowners association is incorporated, but has absolutely no common area. Are we still regulated by the Davis-Stirling Act?

A. 
No. You are regulated primarily by your CC&Rs and the California Corporations Code. Top

FLYING THE AMERICAN FLAG

Q. 
We live in a large townhome association. We would like to fly the American flag and would like to know whether we have the right to do so.

A. 
Your homeowners association may not adopt any rule that would prevent you from displaying a flag of the United States on your private property, unless it is used in or in conjunction with an advertising display. Note that the association can prevent you from flying a flag on the common areas of the association. Top

FINE PROCEDURE

Q. 
What are the procedures that must be followed before an association can fine one of its members?

A. 
The California Civil Code sets forth the procedure for the fine process. When the board of directors of an association is to meet to consider or impose a fine or discipline upon a member, the board must give notice in writing, either by personal delivery or first class mail, at least 10 days prior to the board meeting. The notification must contain the date, time and location of the meeting, the nature of the alleged violation, and a statement that the member has the right to attend and may address the board of directors at the meeting.

If the board of directors imposes discipline on a member, including a fine, the board must provide a notification of the disciplinary action or fine by either personal delivery or first class mail to the member within 15 days following the action.

The disciplinary action or fine will not be effective against a member unless the board of directors complies with all of the requirements of the California Civil Code. Top

AMENDING ASSOCIATION CC&Rs

Q. 
The Covenants, Conditions and Restrictions (CC&Rs) of our homeowners association are over ten years old and in great need of updating. Due to community indifference, our association cannot obtain the 75% required approval needed to modernize the document. We have made three attempts and have failed each time. We are very frustrated because we have spent a considerable amount of money on legal fees without any result. What do you suggest?

A. 
While it is no substitution for updated CC&Rs, one alternative is to have your attorney prepare a detailed letter addressed to all members of the association which communicates the changes that have taken place in the law since the original document was recorded, and any other relevant comments. The letter can be attached to the CC&Rs and passed on to subsequent owners as well. Again, this is not substitute for updating your documents, but it will accomplish a great deal and should not cost much. Top

VIOLATION OF CC&Rs

Q. 
Are association boards required to disclose to the members what the board is doing to cure a violation of the CC&Rs by a member?

A. 
No. Such enforcement actions are not required to be disclosed to the membership unless litigation has been commenced by the board.

The board has a duty to disclose to its members, information that is material to the members’ financial interest and which members must have in order to comply with their disclosure duties to lenders and buyers.

Upon inquiry by a member of the association as to what is being done about a particular violation of the CC&Rs, the best response is to simply inform the member that:

1) The board is (or has) investigated the matter, and
2) Will comply with its duty to enforce the CC&Rs. Top

NO SMOKING RULES

Q. 
Can our homeowners association establish a rule that prohibits smoking in the common areas?

A. 
In the absence of a provision in your CC&Rs that prohibits such a rule, the answer is yes. Directors of association boards have the right to make rules governing the use of the common areas so long as they are legal and not inconsistent with the CC&Rs. Keep in mind that such a rule can be over turned by a subsequent board of directors, and consequently, an amendment to your CC&Rs would make more sense if you want a long-term ban. Top

VIOLATION OF CC&Rs

Q. 
I live in a homeowners association and recently received a letter from our management company indicating that I am in violation of the CC&Rs. I believe that I am being treated more harshly than some other members of the association. Do I have the right to obtain, from the association or the management company, copies of violation letters sent to other homeowners?

A. 
You do not have such a right unless you are involved in litigation with the association. The constitutional right to privacy will protect other members of the association from allowing you inspect their files, unless you are involved in litigation. During litigation, all parties have the right to subpoena relevant records, including the violation letters sent to other homeowners. Top

AMENDMENT TO CC&Rs

Q. 
The board of directors of our townhome association would like to update our CC&Rs because they are over six years old.  Our CC&Rs require that the mortgage lenders approve certain types of amendments.  Is this provision legally enforceable by a mortgage lender?

A. 
Yes.  A mortgage lender has a vested interest in the CC&Rs of an association in which it has made a loan, because the town home is collateral for the loan.

Some CC&Rs amendments directly affect the security interest of a mortgage lender.  Others will indirectly affect the interest of a lender.  All mortgage lenders may become owners of units through the foreclosure process. Top

ONE YEAR LIMIT ON ASSOCIATION CONTRACTS

Q. 
I was recently elected to the board of directors of our townhome association.  After becoming a member of the board, I reviewed several contracts that the prior board had signed.  Notwithstanding the fact that our CC&Rs limit association contracts to one year, the prior board signed a contract for master satellite dish services for a period of five years.  Our current board is not unhappy with the contract other than the fact that it violates our CC&Rs.  What are your comments?

A. 
There are statutory exceptions to the one-year limitation on contracts commonly found in association CC&Rs.  Entering into a contract with a third party to furnish goods or services to the association or its members for a term longer than one year is permitted as follows:

1) Agreements for cable television services and equipment or satellite dish television services and equipment are permitted so long as they do not exceed five years.

2) Lease agreements for laundry room fixtures and equipment are permitted so long as they do not exceed five years.

3) Agreements for the purchase or lease of burglar alarm and/or fire alarm equipment, installation and services are permitted so long as they do not exceed five years.

One stipulation is that contracts exceeding one year may not be entered into with an entity in which the developer has a direct or indirect ownership interest of ten percent or more.  Also, other contracts for a term not to exceed three years that may be terminated by the association, after not more than one year, without cause, penalty or other obligation, upon 90 days written notice of termination are also permitted. Top

EQUAL RIGHTS OF MEMBERSHIPS

Q. 
When a corporation for a homeowner association issues memberships, must the rights of each member be equal?

A. 
No.  In accordance with Section 7330 of the California Corporations Code, a corporation may issue memberships having different rights, privileges, preferences, restrictions, or conditions, as authorized by its articles or bylaws.  However, except as provided in or authorized by the articles or bylaws, all memberships shall have the same rights, privileges preferences, restrictions and conditions. Top

ENFORCEMENT OF CC&Rs

Q. 
We live in a large townhome development.  My neighbor has been in violation of the CC&Rs for several years.  The homeowners association has taken no action and probably will take no action in the future.  How long do I have to start an action against my neighbor for violation of the CC&Rs?

A. 
Per the California Code of Civil Procedure, you have five years from the time you discovered, or through the exercise of reasonable diligence should have discovered, the violation.  However, your neighbor may have other defenses.  Consequently, the matter should be reviewed by an association attorney at the earliest possible time in order to make certain that your rights are not extinguished.

Q. 
Can a member of a homeowner’s association act independently to enforce the CC&Rs against another owner?

A. 
Yes.  The means for enforcement is either the court system or alternative dispute resolution (mediation or arbitration) depending on the type of violation. Top

FAILURE OF BOARD TO ENFORCE CC&Rs

Q. 
The board of directors of our homeowner association is permitting members of our association to grow ivy on the exterior stucco of our buildings.  The stucco is common area that must be repaired by the association if the ivy damages it.  Since I don’t want to be responsible to pay for stucco repairs through my association dues in the future, what should I do?  

A. 
First, point out to your board the specific provisions in your CC&Rs (Covenants, Conditions and Restrictions) that obligate the association to maintain the stucco.  Next, point out the fact that future stucco repairs are only one potential liability being created by permitting the ivy to grow on the stucco.  When ivy or other vines cause the water-proofing quality of stucco to be destroyed, moisture can enter the buildings causing substantial interior damage, including but not limited to mold infestation.  Some molds are highly toxic resulting in immune system disorders and other serious medical problems.  In short, your board is assuming a big and unnecessary risk by allowing ivy or other plant materials to grow on the stucco. Top

FAILURE OF BOARD TO MAINTAIN COMMON AREA

Q. 
The common area of our homeowner association floods around the area of my townhouse every time we get a strong rain.  The water easily reaches a depth of six inches which causes foundation movement and resulting interior damage.  The flooding and damage are due to the failure of our board of directors to maintain the existing drainage system and to enhance it where needed.  Is our association legally responsible for such maintenance?

A. 
Probably.  In accordance with section 1364 (a) of the California Civil Codes, “Unless otherwise provided in the declaration of a common interest development, the association is responsible for repairing, replacing, or maintaining the common areas other than exclusive use common areas***”

While you should check your CC&Rs (Covenants, Conditions and Restrictions), it is highly unlikely that they require anyone other than the association to maintain the area described. Top

RESERVE ACCOUNTS

Q. 
Our homeowner association recently lost money on its mutual fund account.  Is a board of directors allowed to invest association funds in a mutual fund?

A. 
Absolutely not.  All funds must be placed in an insured account in a bank, savings and loan association or credit union. Top

TENANT USE OF RECREATIONAL FACILITIES

Q. 
Can an owner’s tenants and guests use the common area recreational facilities?

A. 
Yes, however, some CC&Rs place certain restrictions on use by guests. Top

OBTAINING GOVERNING DOCUMENTS

Q. 
I own a townhome but don’t have a complete set of governing documents.  How can I obtain a copy?

A. 
Within ten days of an owner’s written request, an association must provide copies of all governing documents including, articles of incorporation, bylaws, rules, CC&Rs and either a subdivision map or condominium plan. Top

INSTALLATION OF SATELLITE DISHES

Q. 
Under the FCC rules, does an owner within a homeowner association have the right to install a satellite dish within the common area?

A. 
No. Top

INSTALLATION OF SATELLITE DISHES

Q. 
What types of restrictions apply to a homeowners association in establishing rules concerning the installation of satellite dishes?

A. 
There is only sufficient space in this column for the short answer.  You should contact an attorney for a complete answer.  

The Federal Communications Commission (FCC) prohibits restrictions that impair a viewer’s ability to receive signals from their property or exclusive use common area.  The federal law applies to rules that attempt to regulate property within the exclusive use or control of the dish owner where the user has an ownership interest in the property or rents it.

A restriction impairs if it:

1)         unreasonably delays or prevents use of,

2)         unreasonably increases the cost of, or

3)         precludes a subscriber from receiving an acceptable quality signal. Top

ARCHITECTURAL VIOLATIONS

Q. 
May our homeowners association record a “Notice of Violation of CC&Rs” against a member’s property for a serious architectural violation?

A. 
No.  Recordation of such a notice is not permitted.  However, such a notice is required by law to be provided to a prospective purchaser by the owner of the subject property. Top

BOARD REFUSAL TO ENFORCE CC&Rs

Q. 
We live in a home governed by a homeowners association.  One of the members of the association is in violation of the CC&Rs on a continuing basis.  Is the association board required to sue the offender if other means are unsuccessful?

A. 
No.  A board may exercise prudent business discretion in deciding whether or not to sue for a violation of the governing documents. Top

ALTERNATIVE DISPUTE RESOLUTION

Q. 
As a member of our homeowners association, I am very unhappy with several of the policies established by our board of directors.  Does the ADR process (Alternative Dispute Resolution) apply?

A. 
Only if the decision of your board relates to CC&R enforcement.  Otherwise, ADR does not apply.  Disputes not involving CC&R enforcement should be remedied through the election process.  Top

TOWING OF VEHICLES

Q. 
Our homeowners association has an owner who insists on parking his vehicle in a marked fire lane.  What can we do?

A. 
The association may cause the removal (towing) of any vehicle, without notice, if the vehicle  is:

1)      Parked in a marked fire lane;

2)      Parked within 15 feet of a fire hydrant;

3)      Parked in a space designated for handicapped persons without proper authority; or

4)      Parked in a manner which interferes with any entrance to, or exit from, the common interest development or any separate interest contained therein.

If the offending vehicle is parked in an unauthorized area other than one of those areas set forth above, all of the following requirements must be satisfied before the vehicle may be towed:

1)      A sign (not less than 17 x 22 inches in size with lettering not less than one inch in height) must be placed at each entrance to the common interest development that contains:

a)      A statement that public parking is prohibited and that all vehicles not authorized to park will be removed at the owner’s expense, and 

b)      The telephone number of the local law  enforcement agency.

          The sign may also indicate that a citation may be issued for the violation.

2)      If the identity of the registered owner of the vehicle is known, or readily ascertainable, the president of the association, or his or her designee shall, within a reasonable time, notify the owner of the removal by first-class mail.

3)      If the identity of the owner of the vehicle is not known or ascertainable, the president of the association or his or her designee shall immediately notify the Department of Justice in Sacramento in accordance with Section 22853 of the Vehicle Code.  Top

MINIMUM AGE TO USE POOL

Q. 
I work for a small company that manages homeowner associations.  What is the minimum age allowed by law for unsupervised children to use a swimming pool or spa?

A. 
Unsupervised use by children under the age of fourteen is prohibited.  In addition, warning signs are required in accordance with Section 3119B.5 of the California Building Code and Title 22, Section 65539(c) of the Code of Regulations - Environmental Health.  Your pool maintenance company should be familiar with these requirements. Top

APPROVED COLORS FOR PAINTING

Q. 
After my recent election to the board of directors of our homeowners association, I carefully reviewed our governing documents.  I noted that while the CC&Rs require that all buildings be repainted one of five alternative colors, at least two prior boards have ignored this provision of the CC&Rs .  This has resulted in several members using unapproved colors.  The current board wants to enforce the CC&Rs from this point forward.  Are there any problems with this?

A. 
Probably not.  Unless there has been a clear intention by the association to waive enforcement of a certain use restriction, the failure to enforce it will generally not preclude the association’s right to enforce it in the future so long as the board does not discriminate or act in an arbitrary manner.  There are no California statutes that directly address the issue and no California cases precisely on point.  Consequently, it would make sense to have your association’s lawyer review all of the facts and then advise you accordingly. Top

REQUESTING FINANCIAL REPORTS

Q. 
I own a townhome, but am not on the board of directors.  While attending a recent board meeting, I asked our management company representative for a current financial statement.  My request was denied and I was told that I am only entitled to a year-end report.  Is this correct?

A. 
No.  California law requires a board of directors to provide every member with a year-end financial report but it does not preclude you from receiving interim reports.  You are entitled to a monthly report, less the member delinquency report, but will be required to pay the cost of duplication.  You are also permitted to inspect association records for any association related purpose. Top

CHRISTMAS LIGHTS

Q. 
Our homeowners association has a restriction against members attaching anything, including lighting, to the common area.  The common area includes the roofs and exteriors of the buildings.  We interpret this to mean that members cannot attach Christmas lights to the exteriors of their townhomes.  Can the board make an exception to the restriction so members can put up their lights?

A. 
I believe your board will be safe in making a temporary exception to the restriction, however, don’t be shocked if someone complains.

Any rule concerning Christmas lights should include the following:

1)      The first date they may be installed,

2)      The last date for their removal,

3)      Any limits on the number of lights permitted (if applicable),

4)      The type of hardware permitted to be used for installation, and

5)      Any daily fine to be imposed if the lights are not removed on time. Top

DISPUTED ASSESSMENTS

Q. 
The management company for our homeowner association has billed me for assessments that I dispute.  They are constantly making errors.  How do I dispute an assessment?

A. 
Section 1366.3 of the California Civil Code permits owners, under certain circumstances, to dispute the imposition of assessments by their association using alternative dispute resolution.  To challenge an assessment, an owner must:

         A.     Pay in full to the association:

1)      The amount of the assessment in dispute;

2)      Late charges;

3)      Interest; and

4)       All fees and costs associated with the preparation and filing of a notice of delinquent assessment (lien), including all mailing costs, and including attorney’s fees not to exceed four hundred twenty-five dollars ($425)

B.       State by written notice that the amount is paid under protest; and,

C.        Mail such notice and payment to the association by certified mail not more than thirty days after the recording of the notice of delinquent assessment.

          Upon receipt of such notice (and payment), the association must inform the owner that the owner may resolve the dispute through alternative dispute resolution, as set fourth in Civil Code section 1354, civil action or any other procedure to resolve the dispute that may be available through the association.

          The right of any owner to dispute the imposition of an assessment may not be exercised more than two times in any single year, nor more than three times within any five calendar years.  Top

TERMITE AND DRY ROT REPAIRS

Q. 
Who is responsible for termite and dry rot repairs in a homeowners association?

A. 
In a condominium or stock cooperative, unless otherwise provided in the CC&Rs, the association is responsible for termite and dry rot repairs in the common areas. Unit owners are responsible for their units and exclusive use common areas.

In a planned development (formerly a PUD), unless otherwise provided in the CC&Rs, each owner is responsible for termite and dry rot repairs. However, upon approval of a majority of all members of the association, the responsibility for such repairs and maintenance may be delegated to the association. Top

NUISANCE BY MEMBER OF ASSOCIATION

Q. 
We live in a planned development with CC&Rs. Our neighbor has created a nuisance by installing lighting that does not comply with the architectural restrictions. The board of directors refuses to do anything about it. What can we do?

A. 
The covenants and restriction in your CC&Rs, unless unreasonable, are enforceable by any owner of a separate interest (home), or by the association or both. Thus, you have the right to bring suit to abate the nuisance. Your suit can include a claim for money damages, including legal fees, as well as a request for injunctive relief. Top

CHILD CARE FACILITIES

Q. 
We live in a neighborhood that consists solely of single family dwellings. Our neighbor began running a state licensed family child care home at their residence this year. We object to this business activity due to the traffic and parking problems caused by parents dropping off and picking up their children throughout the day. This situation is aggravated by the same neighbors keeping five vehicles on their premises, all of which are parked in their driveway and in the street. Their three-car garage is used solely for storage. A vehicle cannot fit in it. We also object to the increased liability we are exposed to should an accident occur involving us and their customers. The CC&Rs for our development state "The lots shall be used solely for private one-family residences" and "No lot shall be used in such a manner as to *** annoy the occupants of other lots by *** offensive trade or activity". There is not an active homeowners association to enforce these rules which are about 14 years old. What avenues are available to us to stop this business activity?

A. 
The California legislature (as set forth in Section 1597.43 of the Health and Safety Code) has found and declared the following:

Family day care homes operated under the standards of state law constitute accessory uses of residentially zoned and occupied properties and do not fundamentally alter the nature of the underlying residential uses. Family day care homes draw clients and vehicles to their sites during a limited time of day and do not require the attendance of a large number of employees and equipment.

Section 1597.40(b) declares:

          "Every provision in a written instrument entered into relating to real property which purports to forbid or restrict the conveyance, encumbrance, leasing, or mortgaging of the real property for use or occupancy as a family day care home for children, is void and every restriction or prohibition in any such written instrument as to the use or occupancy of the property as a family day care home for children is void."

Thus, under current law neither you nor your association can prohibit the operation of the day care facility.

On the other hand, if the operator (who is a member of the association) is violating parking restrictions as set forth in you CC&Rs, either you or your association can file suit against the member(s) to enforce the CC&Rs. In most cases, the prevailing party would be entitled to reimbursement for reasonable legal fees and costs.

Lastly, all licensed day care operators are required to have insurance as set forth in Section 1597.531. Pursuant to this Section, the operator can be required to name the association as additional insured.

The members of your association should definitely establish an active association in accordance with your bylaws and CC&Rs in order to protect both the association (of which you are all members) and the individual homeowners. Failure to do so, will increase your exposure to all types of risks and will likely result in lower property values. Top

INSURANCE REQUIREMENTS OF MEMBERS

Q. 
Can our homeowners association amend its CC&Rs to require each member to carry both earthquake and loss assessment coverages in addition to the standard coverages?

A. 
Yes. After the Northridge Earthquake, owners who had earthquake and loss assessment coverages faired substantially better than owners who did not have these coverages. Their associations also did much better. Consequently, we believe it is critically important for association members to have both earthquake and loss assessment coverages.

While we believe that a CC&R provision requiring owners to maintain insurance would be legally enforceable, we are not aware of any published court decisions that address this issue.

Most importantly, such a CC&R provision would be effective only if the board of directors carefully monitors the submission of insurance certificates. Should the board fail to enforce such a provision and a disaster takes place, an owner may attempt to hold the board and/or the association responsible for any damages. Top

EXCLUSIVE RIGHT TO USE COMMON AREA

Q. 
The CC&Rs of our condominium association prohibit the association from conveying an interest in the common area to anyone. Given this restriction, can the board grant an exclusive easement over the common area to an individual homeowner?

A. 
No. Granting an exclusive easement over the common area to a homeowner is a conveyance that would be prohibited. Under no circumstances should your board attempt such a transfer. Top

DISCRIMINATORY LANGUAGE IN CC&Rs

Q. 
We live in a home located in a subdivision created in the 1940's. The CC&Rs include restrictions against selling to certain persons based on their religion. We know the restriction is unenforceable. Can we ignore it, or are we required to take some other action?

A. 
In 1948 this type of restriction became unenforceable. Until the end of 1999, no action was required. However, beginning January 1, 2000, a new law required that any CC&Rs or other governing documents that include a restrictive covenant in violation of the law must be amended, by action of the board of directors, to repeal such language. Further, any person may bring an action against the association for injunctive relief to require it to remove such a provision. In addition, a court may award attorney’s fees to the prevailing party in such an action.

The law also provided that after January 1, 2001, the existence of such a restrictive covenant constitutes prohibited discrimination, regardless of whether the covenant is accompanied by a statement that it is repealed or void. Top

LEAK FROM CONDOMINIUM ABOVE

Q. 
The condominium above ours has a defective shower pan that leaks into our home. Our management company insists that we must deal directly with the person above us and will offer no assistance. Their position is that the association has no power to act. Are they correct, or should they take action to force the owner with the leaking pan to repair it?

A. 
Your association has the power to act whenever common area property is being damaged by a member of the association. If the defective shower pan is allowing water to wet the internal structure of the building (common area), it may cause dry rot, electrical problems, or other damage. Thus, the association has the power to act.

If your management company and association will not provide you with assistance, you may take legal action yourself. Before filing a suit against your neighbor, your attorney should review your CC&Rs. If a claim can be brought for the enforcement of the CC&Rs, you may be entitled to recovery of legal fees. Top

AMENDING ASSOCIATION CC&Rs

Q. 
Our homeowners association is intending to amend its CC&Rs. Will it be necessary to obtain the approval of the California Department of Real Estate to any amendment?

A. 
Possibly. When a proposed amendment to CC&Rs affects the rights to ownership, possession, or use of the common area, at a time when the subdivider holds at least 25% of the voting power (that can vote for the proposed amendment), the amendment constitutes a material change, and the Department of Real Estate must then give its approval prior to any solicitation of the members for a vote on the proposed amendment. Top

RESTRICTING SALES

Q. 
Our association has recently adopted an amendment to our CC&Rs that requires purchasers of homes in our community to put at least 50% down. The intention is to discourage buyers who cannot afford to pay our association’s assessments. We are tired of dealing with delinquency problems. Is this amendment enforceable?

A. 
Probably not. Courts will not enforce unreasonable restraints on alienation (the sale or leasing of property). A 50% down payment requirement will probably be considered unreasonable because most second trust deed lenders do not require such large down payments or equity positions. Your association is effectively in the same position as a second trust deed lender, in terms of risk. Top

CONFLICTS IN GOVERNING DOCUMENTS

Q. 
In reviewing the bylaws and CC&Rs (Covenants, Conditions and Restrictions) of our homeowner association, our board has noted several conflicts. Which document takes precedence?

A. 
CC&Rs take precedence over bylaws when a conflict occurs. Top

RENTING GUEST PARKING SPACES

Q. 
The board of directors of our townhome association has decided to rent out several guest parking spaces to individual members of our association. Can they legally so this? Their action has created a shortage of visitor parking spaces.

A. 
Absent a highly unusual provision in your CC&Rs (Covenants, Conditions and Restrictions ), the answer is no. The common area is owned by all members of the association and may be used by or for the benefit of all members except in cases where sixty-seventy percent of the members vote to grant an exclusive right to use the spaces.

In addition, many cities prohibit the conversion of guest parking spaces to non-guest use.

You may check with your local city or county building department concerning such restrictions. Top

LAKE MAINTENANCE ASSESSMENTS

Q. 
I live within a large homeowner association that includes a lake which is surrounded by homes. My home is not within view of the lake, nor do we use it. It seems unfair for us to be assessed for the maintenance of the lake when we can’t even see it. Do we have any recourse?

A. 
Other than moving, no. If your CC&Rs ( Covenants, Conditions and Restrictions) require that you pay a share of the maintenance, you must do so. It is a contractual obligation you agreed to when you purchased your home.

Even if you cannot see the lake or don’t use it for recreational purposes, it is a unique amenity that increases the value of your property. Top

WHAT ARE GOVERNING DOCUMENTS?

Q. 
The CC&Rs (Covenants, Conditions and Restrictions) of our homeowners association refers to the term "governing documents". Are rules of the association included within the definition of governing documents?

A. 
Yes. Section 1351 of the California Civil Code defines governing document as CC&Rs (Covenants, Conditions and Restrictions), bylaws, operating rules and articles of incorporation. Top

REIMBURSEMENT OF LEGAL FEES

Q. 
I intend to sue another member of our homeowners association who has created a serious nuisance which is a violation of our CC&Rs. Can I get reimbursed for legal fees?

A. 
Possibly. Section 1354(f) of the California Civil Code states that in any action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs.

Be certain to comply with the Civil Code’s ADR (alternative dispute resolution) requirements before filing suit. Top

INSURANCE COVERAGE

Q. 
Our homeowner association has a master insurance policy that covers the common area. Is the insurance company under a legal duty to review our CC&Rs (covenants, conditions and restrictions) to determine the extent of our common areas before processing a claim for damages?

A. 
No. They are only required to review the insurance policy issued to determine what is covered. Top