HOA Law Blog
By David Swedelson, Partner at SwedelsonGottlieb, Community Association Attorneys
SB 298, which adds Section 53069.81 to the Government Code, is an unusual piece of legislation that provides community associations in one county of California with the ability to contract with local law enforcement agencies to provide Vehicle Code enforcement services at the association. We had not heard about this bill until now and do not know why it was limited to Orange County community associations as we know that associations in other parts of the State have a need for help with enforcement of the Vehicle Code on their private streets.
AB 298 authorizes the Board of Supervisors of the County of Orange, or the city council of a city within this county, to contract to provide supplemental law enforcement services to a homeowners’ association on an occasional or ongoing basis to enforce the Vehicle Code on a homeowners’ association’s privately owned and maintained road, as provided by Vehicle Code Section 21107.7.
A longtime client of the firm was sued by a woman that did not live in the association who claimed that our client had illegally obstructed her view of a lake owned by our client association. After a jury trial on the sole cause of action that was left after we prevailed on a motion for summary adjudication knocking out all of her other frivolous claims, the jury decided that there was no spite fence. This result was not a surprise as the plaintiff was not entitled to her view of the lake, no matter how precious it was to her.
The plaintiff did enjoy a view of the association’s lake. But her view became obstructed several years later when the trees that the association’s developer planted grew up.
After the Trayvon Martin shooting in Florida last year, I posted a blog article highlighting the need for community associations to supervise their volunteers. 
Many owners buy units, lots or homes at community associations that have views and are later shocked to learn that the view they cherish, the view that caused them to buy that home, is not guaranteed. The question that has been posed is whether or not property owners are entitled to an unobstructed view. With some exceptions, the answer in California is “no.” The California Supreme Court spoke on this subject in the late 19th century case of Kennedy v. Burnap and established the doctrine in California that one’s ownership of land does not imply a right to force owners of neighboring land to refrain from obstructing the view from the land or the light and air reaching the land. This law has not changed all that much since that case was decided in 1898.
A pipe, window or some other element of the common area leaks or breaks, and a condo association board decides that it is exclusive use common area and the unit owner’s repair and/or replacement responsibility, as it serves only that one unit. The problem is that this is not what the law provides. And while it may be what many board members and managers want to see happen, this is really contrary to the condominium concept where, unless the CC&Rs otherwise state, the association is responsible for the repair or replacement of the common area, and exclusive use common area is part of the common area. Let’s face reality, we really do not want to see owners opening up and trying to repair the common area, as they may likely not do the right repair, and that may come back to haunt the association in the future (after that owner has sold and moved).
Think your condo association has no obligation to address secondhand smoking nuisance complaints? Think again. 