Are The CC&Rs Stale?

By Kelly G. Richardson, Esq. 

Our Association has one board member who I’ll call “Rick.” “Rick” keeps repeating the same mantras: “Our CC&Rs are so old they aren’t enforceable” (our CC&Rs were written over 50 years ago but don’t have an expiration date); “I know the law, and I have decided that some of the CC&R’s are arbitrary and capricious and I won’t enforce them”; and “If you can’t see the violation from the street, it is not enforceable” (language that does not appear in our CC&Rs). What advice would you give “Rick”? J.L., Murrieta

Dear J.L.: “Rick” is far off base. First, CC&Rs are equitable servitudes that continue on the property unless they have a built-in termination date (modern CC&Rs typically don’t), or are terminated or replaced by vote of the HOA membership. Because CC&Rs are “recorded,” meaning filed with the County Registrar/Recorder, they automatically bind all owners of the property covered by the CC&Rs, regardless of whether the owners read the CC&Rs and regardless of whether they even received a legible complete copy. Recording the document creates automatic or “constructive” notice to a buyer that the property is subject to the CC&Rs. So, unless the CC&Rs have a termination date built in, it doesn’t matter how old they are- they bind all the owners of the properties on which the CC&Rs were recorded.

Second, homeowners don’t decide which CC&R provisions they like and approve of. The landmark Supreme Court case of Nahrstedt v. Lakeside Village Condominium Association settled that once and for all. In that case, the HOA had a ban on all pets, and Mrs. Nahrstedt thought that it was ridiculous to ban cats (she had three). She argued that CC&Rs provisions are only enforceable if the HOA can demonstrate a need for them, but the California Supreme Court in 1994 disagreed. The Court in its ruling said that CC&Rs provisions are presumed enforceable unless they violate the law in some respect or are arbitrarily enforced. So, a homeowner may disagree with a restriction in the CC&Rs, but unless it’s illegal in some way the HOA can enforce it – which is why all homebuyers should carefully read at least the “do’s and don’ts” in the CC&Rs BEFORE closing their home purchase, not afterward. 

Third, individual homeowners (even a director) do not decide what the board will enforce. The whole point of a common interest community is that everybody gives up a little independence so that everyone also has some assurance that their neighbors will be good neighbors. Boards have the discretion to not pursue violations which are more technical than harmful to the HOA community, but that is the board’s prerogative, not “Rick’s.”

Thanks for your questions, and good luck to you and your neighbors with “Rick.” Best, Kelly 

Kelly: The HOA created an Information Handbook taking “synopsis” from the CC&R’s and calling them Rules & Regs, which the board can also modify after notifying all residents of the proposal. What say you? Cordially, D.F., Escondido

Dear D.F.: Rules and regulations, called “operating rules” in the law, are different than CC&Rs. Rules are passed by the board and must be consistent with the CC&Rs. CC&Rs are amended by membership vote and rules are amended by board vote. Thanks, Kelly

The official site for the Davis-Stirling Act: www.leginfo.legislature.ca.gov.