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?
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
FIX LEAKY ROOF
We live in a three story condominium complex in Woodland Hills 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
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?
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?
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
We live in a community of new single family homes in Anaheim Hills 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?
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
Our homeowners association is incorporated in Los Angeles, but has absolutely
no common area. Are we still regulated by the Davis-Stirling Act?
No. You are regulated primarily by your CC&Rs and the California
Corporations Code. Top
We live in a large townhome association in Santa Clarita. We would like to fly
the American flag and would like to know whether we have the right
to do so.
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
What are the procedures that must be followed before an association
can fine one of its members?
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
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?
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
Is my association board in Simi Valley required to disclose to the members what
the board is doing to cure a violation of the CC&Rs by a member?
No. Such enforcement actions are not required to be disclosed
to the membership unless litigation has been commenced by the
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
Can our homeowners association establish a rule that prohibits
smoking in the common areas?
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
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?
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
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?
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
LIMIT ON ASSOCIATION CONTRACTS
I was recently elected to the board of directors of our townhome
association in Ventura. 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?
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
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
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
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
When a corporation for a homeowner association issues memberships,
must the rights of each member be equal?
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
except as provided in or authorized by the articles or bylaws,
all memberships shall have the same rights, privileges preferences,
restrictions and conditions. Top
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?
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.
Can a member of a homeowner’s association act independently to
enforce the CC&Rs against another owner?
Yes. The means for enforcement
is either the court system or alternative dispute resolution (mediation
or arbitration) depending on the type of violation. Top
BOARD TO ENFORCE CC&Rs
The board of directors of our homeowner association in Huntington Beach 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?
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
BOARD TO MAINTAIN COMMON AREA
The common area of our homeowner association in San Diego 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?
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
Our homeowner association in Beverly Hills recently lost money on its mutual fund
account. Is a board of directors allowed to invest association funds in a mutual fund?
Absolutely not. All
funds must be placed in an insured account in a bank, savings
and loan association or credit union. Top
OF RECREATIONAL FACILITIES
Can an owner’s tenants and guests use the common area recreational
Yes, however, some CC&Rs place certain restrictions on use
by guests. Top
I own a townhome in Lakewood but don’t have a complete set of governing documents.
How can I obtain a copy?
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
Under the FCC rules, does an owner within a homeowner association
have the right to install a satellite dish within the common area?
INSTALLATION OF SATELLITE DISHES
What types of restrictions apply to a homeowners association in
establishing rules concerning the installation of satellite dishes?
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
unreasonably delays or prevents use of,
unreasonably increases the cost of, or
precludes a subscriber from receiving an acceptable quality
May our homeowners association record a “Notice of Violation of
CC&Rs” against a member’s property for a serious architectural
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
TO ENFORCE CC&Rs
We live in a home governed by a homeowners association in Garden
Grove. 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?
No. A board may exercise prudent
business discretion in deciding whether or not to sue for a violation
of the governing documents. Top
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?
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
Our homeowners association in Northridge has an owner who insists on parking
his vehicle in a marked fire lane. What can we do?
The association may cause the removal (towing) of any vehicle,
without notice, if the vehicle
1) Parked in a marked fire lane;
within 15 feet of a fire hydrant;
3) Parked in a space designated for handicapped persons without proper authority; or
in a manner which interferes with any entrance to, or exit from,
the common interest development or any separate interest contained
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:
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
TO USE POOL
I work for a small company that manages homeowner associations
in Los Angeles County. What is the minimum age
allowed by law for unsupervised children to use a swimming pool
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
COLORS FOR PAINTING
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
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
I own a townhome in Santa Monica, 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?
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
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?
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:
The first date they may be installed,
last date for their removal,
limits on the number of lights permitted (if applicable),
type of hardware permitted to be used for installation, and
daily fine to be imposed if the lights are not removed on time. Top
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?
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:
Pay in full to the association:
The amount of the assessment in dispute;
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
DRY ROT REPAIRS
Who is responsible for termite and dry rot repairs in a homeowners
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
BY MEMBER OF ASSOCIATION
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?
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
We live in a Moorpark 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?
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:
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
REQUIREMENTS OF MEMBERS
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?
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
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
RIGHT TO USE COMMON AREA
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?
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
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?
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
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?
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
Our homeowners association in Inglewood 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?
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
Our association in Studio City 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?
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
IN GOVERNING DOCUMENTS
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?
CC&Rs take precedence over bylaws when a conflict occurs. Top
The board of directors of our townhome association in Pasadena 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.
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
I live within a large homeowner association in Agoura Hills 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?
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
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
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
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?
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
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?
No. They are only required to review the insurance policy issued
to determine what is covered. Top
OF REAL ESTATE
Does the Department of Real Estate assist with the enforcement
of homeowner association bylaws and CC & Rs?
Homeowner associations are subject to the Davis-Stirling Common
Interest Development Act (California Civil Code Sections 1350
et seq.), which is designed to provide homeowners with a system
of self government and dispute resolution. The Department of Real
Estate reviews the legal framework of all new homeowner associations
to ensure compliance with the Subdivided Lands Law through the
public report application process prior to the homes being offered
for sale to the public. Once sales have commenced, the Department’s
jurisdiction is limited to the subdivider’s obligations under
the public report, which does not include intervention in association
disputes. Presently, there is no state or local agency that regulates
associations or their members. Top
TO ENFORCE CC&Rs
I live in a zero-lot-line homeowner association in Simi Valley, where the CC&Rs (Covenants, Conditions and Restrictions) make the association
responsible for exterior stucco repairs and maintenance except
for situations where a member of the association has caused the
damage. Each member of the association is responsible for interior
My neighbor has planted
ivy in her yard which has attached itself to the exterior of my
townhome in an area where only my neighbor has access. I am concerned
that the ivy will eventually damage the stucco leading to water
intrusion and interior damage. The board of directors seems to
be reluctant to request that my neighbor remove the ivy. What
should I do?
You should advise your board of directors in writing of their
obligation as set forth in your CC & Rs . Specifically, you
should point out that the board should either require your neighbor
to remove the ivy, or agree to recommend to the full membership
, a proposed amendment to the CC & Rs that would require the
association to make both exterior and interior repairs caused
by exterior plants.
It is highly unlikely that
your board will choose to amend the CC & Rs as such. It is
more likely that they will agree to request the removal of the
If the board fails to do
anything, you probably will have documented your file sufficiently
to hold the association responsible if damage takes place in the
future. Also, to be safe, I recommend that you send copies of
your correspondence to any new members who join the board at a
later date. Top
Our homeowner association is fairly old. Should we go to the expense
of updating our governing documents?
If you answer "yes" to one or more of the following questions,
you should seriously consider revising your governing documents:
1) Are your CC&Rsover
five years old?
If so, the document does
not reflect a substantial portion of the legislation specifically
enacted by the state legislature to govern the conduct and administration
It is important to realize
that one of the primary purposes of CC&Rs is to provide notice
to the members (including new buyers) of their legal rights and
obligations. Revised CC&Rs, which reference all of the current
code sections, will meet the disclosure obligations of the board
and management company.
2) Does your board find
it necessary to regularly obtain legal opinions regarding provisions
in the documents either because they are ambiguous or because
they do not include recently enacted legislation?
While the need for future
legal opinions may not be completely eliminated, well written,
up-to-date documents (that are clear, concise and comprehensive)
can substantially reduce the need for legal opinions and can save
your association far more money, in the long run, than the short
term cost of revision.
3) Do your governing documents
adequately address possible disasters such as earthquakes and
Until the 1994 Northridge
Earthquake, many governing documents did not address this complex
issue adequately. For example, after the earthquake, it became
obvious that many governing documents required boards to make
critical decisions before it was possible for them to become adequately
informed on all relevant issues. This often resulted in less than
optimum decisions that turned out to be very expensive for the
4) Do your governing documents
include obsolete references to the developer and the rights of
the declarant, which cause confusion?
These obsolete provisions
can be eliminated, thus making the documents more concise and
5) Do your governing documents
omit important rules (such as parking rules) that, if included,
would improve your ability to manage the association?
If your rules are inadequate,
comprehensive (and legally enforceable) rules can be included
in a revised set of governing documents. Top
Is it possible to amend our CC&Rs so as to discourage renters?
Yes. While courts discourage unreasonable provisions to prevent
owners from renting their properties, there are a number of ways
to do so in a reasonable way. You should contact an attorney whose
practice includes this area of law. Not all attorneys have the
experience to amend governing documents for common
SUED BY MEMBER
Our management company recently recorded an assessment lien against
the property of a delinquent homeowner. Before recording the lien,
they carefully read the CC&Rs and then followed the requirements,
only to find out afterwards that the CC&Rs were outdated and did
not reflect the current law. As a result, we were sued by the
delinquent homeowner and forced to pay a large sum of money to
settle the case. Can we recover from our management company?
I believe you have a good negligence case. Your management company
fell below the standard of care by failing to comply with the
current legal requirements. The recordation of liens can have
serious consequences and should be supervised by an attorney.
The situation you have described clearly illustrates the importance
of amending your association’s CC&Rs in order to make certain
they reflect current law.Top