Q: One of our board members, whom I will refer to as “Rick,” keeps making the same assertions. He claims that our CC&Rs are so outdated that they cannot be enforced, even though they were written over 50 years ago without an expiration date. He also believes that he has the authority to deem certain CC&R provisions as arbitrary and capricious and refuse to enforce them. Additionally, he asserts that if a violation is not visible from the street, it is not enforceable, even though this condition is not stated in our CC&Rs. What advice do you have for “Rick?” — J.L., Murrieta
A: “Rick” is mistaken. Firstly, CC&Rs are equitable servitudes that remain in effect unless they have a specific termination date (which is not common in modern CC&Rs) or are terminated or replaced through a vote by the HOA membership.
Since CC&Rs are “recorded,” meaning they are filed with the county registrar/recorder, they automatically bind all property owners covered by the CC&Rs, regardless of whether they have read or received a legible, complete copy of the CC&Rs. Recording the document creates automatic or “constructive” notice to a buyer that the property is subject to the CC&Rs.
Therefore, it doesn’t matter how old the CC&Rs are. Unless they have a built-in termination date, they are binding for all property owners.
Secondly, homeowners do not get to choose which CC&R provisions they approve of. This was settled by the landmark Supreme Court case of Nahrstedt v. Lakeside Village Condominium Association. Mrs. Nahrstedt disagreed with the HOA’s ban on all pets and argued that CC&R provisions are only enforceable if the HOA can demonstrate a need for them. However, the California Supreme Court ruled in 1994 that CC&R provisions are presumed enforceable unless they violate the law or are arbitrarily enforced.
Therefore, homeowners can disagree with a restriction in the CC&Rs, but unless it is illegal, the HOA has the right to enforce it. This is why it is important for homebuyers to carefully read the “do’s and don’ts” in the CC&Rs before closing their home purchase.
Thirdly, individual homeowners, even board members like “Rick,” do not have the authority to determine which violations the board will enforce. The purpose of a common interest community is for everyone to sacrifice a little independence to ensure that everyone is a good neighbor. The board has the discretion to not pursue violations that are more technical and do not harm the HOA community, but this decision lies with the board, not with “Rick.”
Thank you for your questions, and I wish you and your neighbors good luck in dealing with “Rick.”
Q: The HOA has created an information handbook that summarizes the CC&Rs and refers to them as rules and regulations. The board can also modify these rules after notifying all residents of the proposed changes. What are your thoughts on this? — D.F., Escondido
A: Rules and regulations, known as “operating rules” in the law, are distinct from CC&Rs. Rules are established by the board and must be consistent with the CC&Rs. CC&Rs can only be amended by a vote of the membership, while rules can be amended by a board vote.
Kelly G. Richardson, Esq. is a renowned member of the College of Community Association Lawyers and a Partner at Richardson Ober LLP, a respected California law firm specializing in community association advice. Please send your column questions to [email protected].
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