Articles Posted in CC&R and Rule Enforcement

By David Swedelson, SwedelsonGottlieb Partner, Condo Lawyer and HOA Attorney
These days, going “green” is all the rage. So, it is no surprise that lately we are getting more and more inquiries from boards wondering how they should respond when homeowners request authorization to install solar panels. If the owner wants to install the solar panels on the common area, such as the roof of a condominium building, the answer is easy: “NO.” Owners do not have the right to install any type of modification on the common area, and solar panels are no exception.

However, it is a different story when owners request permission to install the solar panels on their own roof. As you might suspect, the answer is more complicated. Regardless of what the association’s governing documents may say, Civil Code Sections 714 and 714.1 limit the ability of a homeowners association to restrict the installation of solar panels within a separate interest. Civil Code Section 714 says, among other things, that a community association cannot enact a covenant, restriction or condition which limits or restricts an owner’s ability to install a solar energy system. In fact, any such covenant, restriction or condition is considered “void and unenforceable”. If homeowners want to install solar panels on their separate interest (meaning on their own home or yard), they must submit an architectural application as would be required for any other exterior improvement or modification. However, because of the limitations of the Civil Code, the architectural committee (or board) cannot deny the application for solar panels simply because solar panels do not fit in with the aesthetics of the development.
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The Los Angeles Times publishes a column entitled Rent Watch. Recently, the column addressed a situation where a tenant maintained in that tenants apartment a seeing eye dog that barked at night bothering the neighbor(s). The answer applies to community associations as well as rental units. Follow this link to read the selected Q&A.

As that column correctly indicates, while community associations (which are considered housing providers for the purpose of fair housing/accommodation matters) are required to reasonably accommodate disabled residents, the accommodation provided to a disabled individual must be “reasonable”. Quoting from the article, “If the dog’s behavior is an unreasonable nuisance to other [residents], the [association] is not obligated to ignore that.”

It may be necessary to contact the resident directly to advise them that while they are able to have their dog in their unit (which may violate the association’s governing documents) their dog is creating a nuisance and they have to deal with that and the dog will have to leave. Otherwise, their request to maintain their dog in their unit is not reasonable so long as it continues to bark and create a nuisance.

September 22, 2010 marked the beginning of the Jewish holiday of Sukkot. This holiday starts on a different date between late September to late October each year and has agricultural orgins, celebrating the harvest. If it is Sukkot, we can be assured of getting calls asking us what to do about the Sukkahs that some homeowners have erected on their balconies or patios (or in some cases right in the common area). For those of you who don’t know what Sukkot entails, some Jews construct temporary outdoor dwellings, called Sukkahs, where they traditionally eat, sleep, and otherwise spend their time during this seven day holiday. Click here for examples of Sukkahs. The Sukkahs are typically small temporary wooden structures, but can be quite elaborate, incorporating various decorations such as hanging fruit and vegetables.

What do you do if a homeowner puts up a Sukkah on their exclusive use common area, or worse, on the common area that is not theirs to use exclusively, in violation of governing documents that contain prohibitions on exterior modifications without architectural committee approval? Despite our constant admonishments to uniformly and consistently enforce the governing documents, the association’s right to enforce its restrictions has to be weighed against the homeowners’ right to practice their religion.
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An interesting trial court decision was reported in the Daily Journal, a newspaper for attorneys. The article dealt with a the trial judge’s decision in a lawsuit between two owners in a Newport Beach gated zero lot line community regarding a purported landscaping encroachment. A zero lot line refers to a type of home where one boundary wall of the structure is built right on the property line (rather then there being a wall between the two homes with a setback).

Follow this link to read the article/summary.

One neighbor claimed that the other neighbor’s shrubbery that grew along a 2.5 foot wall on their shared property line was interfering with their view. They also sought a declaration from the court that their neighbor would be responsible for future damage to the drainage system that may be caused by their landscaping. The plaintiff owner requested $100,000 in damages and injunctive relief (and a court order requiring that the conditions be eliminated).
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I read with interest an article that appeared in the Los Angeles Times addressing a La Crescenta neighborhood’s uproar over one owner’s neon green paint job. Follow this link to read/download the LA Times article.

One neighbor was quoted as saying that the green paint color was “completely inconsistent with the neighborhood. We have a real concern it’s going to lower property values.”

Unfortunately, there are no standards in this area, and it’s unlikely that anyone can do anything about the neon green. This would likely not be the case if this home were located in a planned development where paint colors are controlled.

One of the more difficult and confusing issues that boards and association management often have to deal with is determining who is responsible for the maintenance and repair of common area plumbing, ventilation and other utility components, especially those that serve only one unit. Even attorneys sometimes get it wrong and believe that merely because the pipe, duct or wiring serves only one unit, the affected owner is responsible for same. Just because a common area component serves or benefits only one unit does not by itself make that component that owner’s repair and/or replacement responsibility.
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By Alyssa Klausner, SwedelsonGottlieb Senior Associate

In the case of Villa Vicenza Homeowners Association V. Nobel Court Development (follow this link to see the entire decision), the developer of a condominium project recorded a Declaration of Covenants, Conditions and Restrictions (CC&Rs) which required a homeowners association to arbitrate any construction defect claim the association might have against the developer. The Court ruled that the CC&Rs are not an effective means of obtaining an agreement to arbitrate a homeowners association’s construction defect claims against a developer.

The basis of the Court’s decision was that the recorded CC&Rs, standing alone, are not a contract between the developer and the homeowners association, which only came into existence after the CC&Rs were recorded, and therefore there has been no showing the association entered into a binding arbitration agreement.

You may remember the three pigs’ response to the wolf when he demanded entry into their homes in the old children’s story.

Unfortunately, we have seen some cases where a few homeowners seem to consider their homeowners association to be a “wolf” and will not cooperate with the association’s reasonable requests to enter their property when necessary in order to perform the association’s duties under the association’s governing documents. Far from being the bad guy in the story, the association often needs to gain entry in order to perform tasks that directly benefit the individual owner, as well as the association in general. Inspection of water leaks, mold testing, sound attenuation testing, and inspection for and/or repair of construction defects are just some examples. Even though the association’s right to do this may be explicitly spelled out in the association’s governing documents, some homeowners refuse to allow the association entry.

In some cases, a lawsuit must be filed, seeking a court order to allow entry. Attorneys’ fees and costs may be awarded to the association, in addition to the cost for a locksmith, which may become a judgment lien against the owner’s property. And all of these costs could have been avoided by the owner simply opening the door!

We recently received an interesting request from a board of directors regarding amending the pet provision in their Declaration of Covenants, Conditions and Restrictions. Apparently, many members of the association have a distinct love of ferrets. Following is the language we developed for this association…
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Despite the wind, rain and cold weather that followed us from Southern California, SwedelsonGottlieb attorneys David Swedelson, Stephanie Rohde and Alyssa Klausner recently attended the 31st Annual CAI National Law Seminar in Tucson, Arizona. We have written an article about what we learned from this excellent seminar; follow this link for a copy of the article.