Articles Posted in CC&R and Rule Enforcement

We are often asked by Boards about what is a reasonable rule. The answer is that I know it when I see it. We prepared an article that addresses this very issue. Click here for that article, “What Makes a Rule Reasonable or Unreasonable? I Know It When I See It!” By David C. Swedelson, Senior Partner of SwedelsonGottlieb.

Knowingly or unknowingly, sometimes boards adopt rules which are in conflict or more restrictive than the association’s CC&Rs. For example, they make specific rules regarding prohibitions on the installation of washing machines when the CC&Rs are silent on the matter. Boards sometimes prohibit hard surface flooring when this is likewise not covered by their association’s CC&Rs. We sometimes see rules that limit the number of or size of animals that homeowners are able to maintain when this is likewise not covered by the association’s CC&Rs. Sometimes, these rules end up in litigation, especially when the board tries to enforce same. Often the board of directors will argue that the court must defer to their discretion when they are performing their duties. While usually the courts will defer to the board of directors when it comes to decisions covered by the association’s governing documents, this is not true when the board has exceeded its authority.

Such was the case involving an association in Orange County, California, where the board decided they were not going to make homeowners “trim” their palm trees to eliminate a view obstruction and made a rule regarding this even though the association’s CC&Rs prohibited any view obstructions from landscaping. Firm attorneys David C. Swedelson and Stephanie M. Rohde have prepared an article entitled “Decisions of Boards of Directors Regarding Enforcement of Governing Documents Cannot Usually Be Second Guessed Unless the Decision is More Restrictive than the CC&Rs.” Click here for a PDF copy of this important and timely article.

Chee v. Marina Seagate Condominiums, (2006) 143 Cal.App.4th 1360, 50 Cal.Rptr.3d 40.

Lila Chee (“Chee”) is a 71-year-old resident owner of a condominium at the Marina Seagate condominium complex. She was allegedly injured when a Jack Russell Terrier owned by Olga Kiymaz, at the time a tenant in the condominium next door, ran out of Kiymaz’s unit, unrestrained by a leash. The dog jumped on Chee, allegedly causing her to fall and sustain numerous injuries. Kiymaz rented the condominium from unit owner Jerome Brown. Chee filed a second amended complaint against Brown, the Marina Seagate Homeowners Association (“Association”), and others. Chee brought Brown and the Association (and Brown’s property managers who rented the unit to Kiymaz) into the lawsuit after Kiymaz filed for bankruptcy and was dismissed from the action.
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When an association discovers that an owner has made substantial alterations or modifications to their home that were not approved (often after the work has been done and a neighbor complains), we often hear board members or community association managers suggest that a judge is not going to make the homeowner remove an extensive modification of a home just because that modification violates the Association’s Governing Documents. While that is certainly a consideration that a court must make, we received a report (in the Daily Journal legal newspaper) that one judge did the right thing and ruled in favor of the Association under these circumstances.
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Early voting is underway and, as expected, we have received calls complaining about political signs. You may be getting questions or comments about sign regulation in your communities, so we thought it would be a good idea to let you know what goes, and what does not, in community associations with regard to political signs. Some people assume that there is no way that community associations can regulate political signs because prohibiting signs would violate a resident’s right of free speech under the First Amendment to the Constitution. While there is some validity to this assumption, it is not entirely correct in the community association context.

It is common to have sign regulation in community associations, particularly with respect to “For Sale” signs. Civil Code sections 712 and 713 make any blanket prohibitions void. While owners can have these signs on their property, they are not entitled, for example, to post these signs on the common area.

The question, then, is whether there is a distinction between “For Sale” signs and political signs, considering the fact that political signs seem to have more to do with free speech than “For Sale” signs. When analyzing government regulation of speech, the courts often distinguish between “commercial speech” and other types of speech, and find that commercial speech is not entitled to the same level of protection as other types of speech. But does that matter in a community association?

Associations Must Act Timely and Decisively to Enforce Covenants

This summary of a recent Court of Appeals decision was published in the October 2008 edition of the Community Association Law Reporter published by Community Associations institute. What do you think of the Court’s decision?

Pacific Hills Homeowners Association v. Prun, No. G038244, Cal. App. Ct., March 20, 2008
Covenants Enforcement: If an association does not act timely and decisively in enforcing covenants, then the association may face penalties if the dispute goes to court.

Jon and Linda Prun live in a planned community in Mission Viejo, Calif. Their property is subject to a declaration of covenants, conditions, and restrictions, which is enforced by the Pacific Hills Homeowners Association (“association”). The declaration requires that prior written approval from the association’s architectural committee is needed before construction of any improvement, including a fence or wall, can commence. The association also adopted architectural guidelines that limit fences to six feet in height unless the fence is within 20 feet of the front property line, in which case the maximum height is three feet.
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New Procedures Apply To The Adoption Of “Operating Rules”

The Davis-Stirling Common Interest Development Act was amended effective January 2003 by adding Civil Code Sections 1357.100 through 1357.150 which require that certain rules and regulations of an association defined in the Civil Code as “operating rules” satisfy specified criteria before that operating rule becomes effective. For certain categories of rule changes listed in the Civil Code, the board of directors of an association must give its members at least 30 days’ notice of a proposed rule change prior to adopting the rule change. The notice must include the text of the rule change and a description of the purpose and effect of the rule can; however, rules adopted for emergency purposes are exempt from the notice requirements.

Once the 30 day notice period expires, the Board may adopt the proposed rule change. The Board must notify the members soon as possible after the rule has been and no more than 15 days after making the rule change.