CASE LAW

CC&R AMENDMENTS
SHIFTING MAINTENANCE RESPONSIBILITIES
Court of Appeal upholds judgment in favor of association on owner's “retroactive” maintenance responsibility claim.

In the unpublished case of Mariani v. Harbor Pointe Owner's Ass'n, 2013 WL 266515, the California Court of Appeal affirmed a trial court's decision and award of attorney's fees in favor of an Alameda County association. In the case – which, because it is unpublished cannot be cited as authority but provides a good opportunity to see how judges rule on issues affecting homeowner associations - an owner claimed that without his personal consent an association could not enforce a CC&R maintenance amendment – passed by a supermajority of owners – against him, because, he claimed, he lost the benefit of the original maintenance scheme. The amendment shifted maintenance responsibility for siding from the association to each individual owner. On appeal the owner conceded that he was bound by the CC&R amendment but contended that the amendment did not terminate the association's duty to perform maintenance that was in progress or that had “accrued” before its enactment. The Court held that the trial court had appropriately rejected the owner's “retroactivity” claim because the owner had not offered any admissible evidence that the association failed to perform any maintenance that had accrued or was otherwise in progress at the time the amendment was enacted. The association was awarded its attorney's fees and costs at both the trial court and appellate levels.

The Court's holding turned on the owner's failure to produce adequate evidence to support his claim. The Court did not address the substantive and more significant issue of whether maintenance obligations, if in fact promised or ongoing at the time of an amendment, can be retroactively enforced against an association after the amendment is approved. Or, to put it another way, whether the association can impose new maintenance obligations on an owner that did not exist at the time he or she purchased their home. Because this is an unpublished case future courts, nor those of us advising association clients cannot rely upon it as legal precedent. It does illustrate however, that amendments shifting maintenance can be both controversial and useful and, with the advice of counsel, are worth considering and if implemented, must be done so carefully.

CC&R ARBITRATION PROVISIONS
Developer, having sold all units in condominium, lacks standing to enforce CC&R arbitration provision.

The Court of Appeal, Second District, affirmed a trial court’s denial of a developer’s motion to compel arbitration where a CC&R provision mandated such arbitration for a construction defect case. The Court noted that CC&Rs are equitable servitudes, not contracts. Further, equitable servitudes are generally unenforceable by one who no longer holds an interest in the land. Thus, because the developer had sold all of its interest in the project, it lacked standing to enforce the arbitration provision in the CC&Rs.

Promenade at Playa Vista Homeowners Association v. Western Pacific Housing, Inc.
(2011) ___ Cal.Rptr.3d ___, 11 C.D.O.S. 13705, 2011 WL 5344311.

SOLAR ENERGY SYSTEMS
Strict compliance with internal architectural review procedures essential for successful enforcement.

The Court of Appeal, Second District upheld an Association's right to require removal of a solar energy system which was constructed without Association approval and in violation of the community's CC&Rs and Architectural Design Guidelines. The owners had applied to install a solar energy system on a steep slope and installed the system after the Architectural Control Committee denied their application. Because the existing CC&Rs and Design Guidelines were reasonable and compliant with California's solar energy statute and because the Association followed its own procedure in considering the owner's application, the court affirmed a jury verdict in favor of the Association.

Tesoro Del Valle Master Homeowners Association v. Griffin, et al.
(2011 WL 5142962).

PREMISES LIABILITY
Under “trivial defect” rule, homeowners association not liable for injuries resulting from owner’s fall caused by sidewalk separation.

The “trivial defect” rule provides that a property owner is not liable for minor or trivial defects in the property, even if the owner has actual notice of them. The Court of Appeal, Second District applied that rule to find that a roughly 3/4” sidewalk separation was trivial and, accordingly, the homeowners association charged with maintaining the sidewalk was not liable for an owners’ injury when she tripped and fell. The Court noted that the fall occurred at noon on a sunny day, the sidewalk separation was not obscured and the owner admitted not seeing the separation because she “wasn’t looking at [it].”

Cadam v. Somerset Gardens Townhomes HOA et al.
(2011 WL 5110249).