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EVICTION
BY ASSOCIATION
Q.
Can the board of directors of our homeowners association evict the
tenant of a member if the tenant is violating rules of the association?
A.
No. Only the owner of a property can evict the tenant. If the tenant
is violating rules of the Association, the board of directors should
take action against the member. This can be in the form of a nuisance
lawsuit or fines. Some associations have included language in their CC&Rs allowing the association to evict tenants. I believe this is a dangerous approach. Top
RIGHT TO
CUT TREE ROOTS AND BRANCHES
Q.
My neighbor's tree is only inches from the property line. Do I have
the absolute right to cut roots and branches that encroach onto
my property?
A.
No. You do not have an absolute right. You have only the right to
act reasonably. I suggest you talk to a consulting arborist before
you do any cutting to make certain that you don't damage the tree
and get yourself into trouble. Top
PROHIBITION
OF SMOKING
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
UNLAWFUL
CONDUCT
Q.
We own a condominium unit within a very large complex that has more
renters than owners living on-site. Some of the owners have
rented to people who are engaging in unlawful conduct within our
community. The problem
is getting worse and while local law enforcement is trying to solve
the problem, they can't be everywhere at once. What do you suggest?
A.
It would have been helpful if you had described the unlawful conduct.
Most unlawful conduct engaged in on-site constitutes a private
nuisance, so I will respond on that assumption.
A private nuisance exists
when someone occupying a property is involved in an unlawful or
unreasonable activity causing harm to another.
California law protects
citizens against private conduct that amounts to a nuisance and
nearly all homeowner association governing
documents contain specific language prohibiting residents from creating
a nuisance.
Your management company
working closely with your law firm should first carefully document
each individual nuisance.
The specific inappropriate conduct should then be reported
to the owner together with a strongly worded warning stating that
the association is intending to file suit (to abate the nuisance)
against the owner and renters unless satisfactory evidence
is produced proving that the owner has commenced an unlawful detainer (eviction) action.
Fines can and should also
be levied against the owner in accordance with the association's
written policy. The
collection of such fines can be made part of any lawsuit against
an owner if it becomes necessary to file suit
My experience is that the
vast majority of private nuisances can be stopped short of filing
suit, if your management company and law firm work closely together
and have the necessary knowledge and experience to address all issues. Top
NUISANCE
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
FAMILY 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
ENFORCEMENT
OF CC&Rs BY MEMBER
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. Top
INDEPENDENT
ENFORCEMENT OF CC&Rs
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
REIMBURSEMENT OF LEGAL FEES
Q.
I intend to sue my homeowner association for failing to enforce
the CC&Rs against another member who has created a serious nuisance.
Can I get reimbursed for legal fees?
A.
Probably. Section 1354(c) 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
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