Your Rights And Duties As A Condo Owner
By: Roman P. Mosqueda, Esq.
You are a condo owner, or you plan to be one. You enjoy or want to have its carefree ownership without management duties. You need to know your rights and responsibility.
In her article entitled “The Parallel Universe of Common Interest Developments: Selected Issues,” real estate attorney Alice M. Graham states the transformation of the rights in real property described as a “bundle of sticks” to a “handful of twigs” of a condominium owner, subjected to homeowners’ association’s limitations.
Indeed, homeowners’ association’s powers are derived from the recorded Declaration with Covenants, Conditions and Restrictions (CC&Rs) and the Davis-Stirling Common Interest Development Act, in California Civil Code Sections 1350 et. seq.
Blame The CC&Rs
Enforced By HOAs:
The culprit is the CC&Rs in the declaration generated by developers of “common interest developments” consisting of community apartment projects, condominium projects, planned development, or stock cooperative.
Homeowners have ownership in all of the common areas of these developments usually as tenants in common, in equal shares. But they are bound by the recorded CC&Rs, required by The Subdivided Lands Law, in California Business and Professions Code Section 11000 et. seq., to enable subdividers to sell units to the public.
Civil Code Section 1354(a) states that: “The covenants and restrictions in the declaration shall be enforceable equitable servitudes, unless unreasonable, and shall inure to the benefit of and bind all owners of separate interests in the development. Unless the declaration states otherwise, these servitudes may be enforced by any owner of a separate interest or by the (homeowners’) association (HOA), or by both.”
In Nahrstedt v. Lakeside Village Condominium Association (1994), the California Supreme Court found for the association because the condo and cat owner failed to prove that the pet restriction in the CC&Rs, not allowing dogs or cats to be kept in the development, was unreasonable.
The Court established a new standard of reasonableness for enforcing CC&Rs, consisting of a three part test: (1) being arbitrary, (2) violating a fundamental public policy, or (3) imposing a burden on the association member that substantially outweighed the benefit to the association as a whole.
In his Pepperdine Law Review article, “Condos, Cats and CC&R’s,” Justice Armand Arabian, the lone dissenter in Nahrstedt, expressed this concern on the rights of common interest development homeowners: “Their individual rights and interests may be sharply curtailed by CC&Rs they have little ability to modify. At the same time, they may find themselves at the mercy of their HOAs, which have the authority … in Nahrstedt to intrude into many every day activities in the guise of enforcing CC&Rs, with little accountability, much less due process.”
Pet Ownership Cannot
After January 1, 2001:
It took the California Legislature and the Governor to enact Section 1360.5 of the Civil Code, which became operative on January 1, 2001, and states that no governing documents (declarations with CC&Rs), entered into, amended, or otherwise modified on or after that date, “shall prohibit the owner of a separate interest within a common interest development from keeping at least one pet within the common interest development, subject to reasonable rules and regulations of the association.”
But CC&Rs entered into before January 1, 2001, may still prohibit pets and allow levy of fines for violation thereof, unless the California Supreme Court overrules its ruling in Nahrstedt.
And Section 1360.5 of the Civil Code applies only to pet restriction in the CC&Rs. It does not affect restrictions on parking any truck, camper, or trailer in the carport, as in Bernardo Villas Management Corp. v. Black (1987), overruled by Nahrstedt as reasonable; and restriction on installing a satellite dish, as in Portola Hills Community Ass’n v. James (1992), likewise overruled by Nahrstedt as reasonable.
Nor does it apply to restrictions such as not painting a unit with a different color, or color not approved by the HOA; nor to requiring approval to build a shed, fence, or gate, and the type and location thereof in an owner’s yard or unit in a planned development.
But the Appellate Court, Division Three, found in Fountain Valley Chateau Blanc HOA vs. Department of Veterans Affairs (1998) that it was unreasonable as well as galling and presumptuous for an association to order an owner to “clear his bed of all papers and books, discard ‘outdated’ clothing, and remove the papers, cardboard boxes and books from the floor area around his bed and dresser.”
Homeowner’s Exposure
To Premises Liability:
As a general rule, if a person were injured in the common area of a common interest development such as a condominium, due to a dangerous condition of the premises, each unit owner is jointly and severally liable to the injured person for negligence, under Section 1714(a) of the Civil Code.
But under Section 1369.9 of the Civil Code, “any cause of action in tort against any owner of a separate interest arising solely by reason of an ownership interest as a tenant in common in the common area of a common interest development shall be brought only against the association and not against the individual owners of the separate interest …, if both the insurance requirements are met. “
The insurance requirements which exempt the individual owners from tort suit are:
(1) the association maintained and has in effect for this cause of action, one or more insurance policies which include general liability coverage of the association; and
(2) the coverage is in the minimum amounts of at least two million dollars, if the common interest development consists of 100 or fewer separate interests, or at least three million dollars, if more than 100 separate interests.
So, you, as a condo or separate interest owner, in exchange for giving up some proprietary rights in the CC&Rs, are sheltered from premises liability lawsuits for negligence in the common area of the condominium or planned development.
(The Author, Roman P. Mosqueda, is a real estate attorney and broker, who has personally handled cases for homeowners’ association and for homeowners against their associations.)