An association’s “Declaration of Covenants, Conditions and Restrictions” (“declaration” or “CC&Rs”) is a recorded document setting forth the majority of the powers, rights and responsibilities of the association and its members. CC&Rs generally contain provisions addressing:

• Assessment obligations of members;
• Association and member maintenance responsibilities;
• Architectural control powers;
• Association enforcement authority;
• Dispute resolution;
• Insurance requirements; and
• Property use restrictions.

The restrictions contained in the CC&Rs are considered “an inherent part of any common interest development and are crucial to the stabled, planned environment of any shared ownership arrangement.” (Nahrstedt v. Lakeside Village (1994) 8 Cal. 4th 361, 372.)

Application of CC&Rs; Equitable Servitudes
A developer creates and records CC&Rs as “equitable servitudes” against each of the separate interests within the common interest development (“CID”). Equitable servitudes are essentially contractual restrictions on the use of land which are legally binding on current and future property owners. (Civ. Code § 5975.) The restrictions contained in  CC&Rs are “clothed with a very strong presumption of validity which arises from the fact that each individual unit owner purchases his unit knowing of and accepting the restrictions to be imposed.” (Villa de Las Palmas HOA v. Terifaj (2004) 33 Cal.4th 73, 90.)

Enforcement
CC&Rs are enforceable unless they are unreasonable. (Civ. Code § 5975.) Reasonableness is determined by reference to the CID as a whole, not just the facts underlying the individual opposing homeowner (i.e., courts determine whether the CC&Rs are reasonable as applied to the particular CID in its entirety, not just their application to a particular set of facts surrounding an individual homeowner’s objection). (Nahrstedt v. Lakeside Village Condo Assn. (1994) 8 Cal.4th 361.) Courts will enforce an association’s CC&Rs unless they “are wholly arbitrary, violate a fundamental public policy, or impose a burden on the use affected land that far outweighs any benefit.” (Nahrstedt at 382.)

Similarly, the association may not enforce the CC&Rs in such a way “that would violate statutory or common law.” (Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 499 fn. 6.). “Enforcement of [CC&Rs] must be in good faith, not arbitrary or capricious, and by procedures which are fair and uniformly applied.” (Liebler v. Point Loma Tennis Club (1995) 40 Cal.App. 4th 1600, 1610.)

Both the association and its individual owners/members have the right to enforce the CC&Rs. (Civ. Code § 5975.) However, the association’s board of directors is afforded some discretion with regard to the decisions it makes in enforcing the CC&Rs on behalf of the association. (See “Duty to Enforce.”)

Interpretation & Amendment
The restrictions set forth in the CC&Rs may not be clear and may become ambiguous in light of changing circumstances within the CID over time. Civil Code Section 4215 therefore provides for the “liberal construction” of CC&Rs. Liberal construction allows for the CC&Rs to be interpreted in a way which serves “to facilitate the operation of the common interest development.” (Civ. Code § 4215.)

Associations may choose to formally amend and restate their CC&Rs to reflect changes in the law, to address circumstances in the CID that may not have existed when it was developed, or to modify the rights and responsibilities of the association and its members.

Share: