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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 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?

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


NUISANCE BY MEMBER

Q. 
Can the burning of incense be considered a nuisance by the board of directors of our association?

A. 
Yes, if it satisfies the definition of a nuisance as set forth in the CC&Rs, or California Civil Code.Top


DISADVANTAGES TO MIXED USE PROPERTY

Q. 
I am considering purchasing a residential condominium in a mixed use development. I like the convenience of the retail stores on the lower level. What are some of the disadvantages?

A. 
Disputes frequently arise over the following:

Allocation of expenses,
Traffic and parking,
Nuisance issues such as cooking odors, and
Security considerations  Top
   






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