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Liebler v. Point Loma Tennis Club

(1995) 40 Cal.App.4th 1600

[Operating Rules; Non-Resident Use] A HOA may create and enforce a rule excluding non-resident owners from use of the HOA’s common area recreational facilities.

Alan L. Williams for Plaintiff and Appellant.
Genson, Even, Crandall & Wade and Kurt A. Moll for Defendant and Respondent.

[1604] OPINION

NARES, J.-

Kenneth Liebler (Liebler) appeals a judgment in favor of defendant Point Loma Tennis Club Community Corporation (PLTC), following a determination the PLTC declaration of covenants, conditions and restrictions did grant PLTC the authority to enact rules which exclude Liebler, a nonresident owner, from using the common area recreational facilities.

Liebler contends (1) the PLTC covenants, conditions and restrictions do not grant PLTC such a power of exclusion; (2) the rules and regulations which exclude nonresident owners from common area recreational facilities are unreasonable; and (3) the covenants, conditions and restrictions also do not grant PLTC the power to impose fines for violations. We affirm the judgment.

FACTS [FN. 1] AND PROCEDURE

Liebler purchased a condominium unit[FN. 2] in the Point Loma Tennis Club in June 1984. When Liebler purchased his unit, he received a copy of the recorded PLTC declaration of covenants, conditions and restrictions (CC&Rs) and the PLTC rules and regulations.

The CC&Rs (1) establish ownership of a unit as the basis for holding a membership in the PLTC (§ 2.1) and (2) repeatedly set out the duty of the corporation to establish necessary rules for use and occupancy of the property (§ 3.2.9) and the common areas as well (§ 7.8.2).

Since 1977 (some seven years before Liebler acquired his unit), the PLTC rules have specifically excluded nonresident owners from use of the common area recreational facilities. In addition, the CC&Rs contain a covenant specifically prohibiting the severance and separate conveyance of an owner’s interest in his unit from his undivided interest in the common area. Liebler never lived in the unit, but leased it to his daughter and then to a succession of tenants.

At the time Liebler purchased his unit, he and his daughter registered and obtained identification cards for use of the PLTC recreational facilities. After Liebler’s daughter moved out and Liebler rented the unit to others, he [1605] continued to use the recreational facilities, in particular, the tennis courts. The Sullivans, Liebler’s tenants at the time of the lawsuit, also used the recreational facilities.

Shortly after Liebler leased his unit to the Sullivans, he amended the lease agreement to include a statement that “Both parties confirm that for all purposes, the tenant and landlord share the premises as cotenants.” No evidence was introduced showing Liebler ever occupied the unit or shared it with the Sullivans in any way other than by continuing to use the common area recreational facilities.

Early in 1992, some homeowners asked the board of directors of the PLTC homeowners association (Board) to look into use of the tennis courts by nonresidents and others who “did not belong there.” In April a list was compiled of owners who held identification cards but whose addresses indicated they were not residents of PLTC. The Board then sent a letter to each of these nonresident owners asking for the return of their cards, reminding them of the rule requiring assignment of the use of the facilities to their tenants, and advising them that nonresident owners who continued to use the facilities would be asked to leave or fined.

All the nonresident owners except Liebler complied, either by returning their cards or, in some cases, reporting the cards as lost. Liebler responded with a hostile letter informing the Board he was a “registered resident” of his unit by the terms of his lease and he considered himself entitled to the privileges of a tenant as well as those of an owner. Liebler did not, however, provide the Board with a copy of the lease. Liebler later testified he did not live in the unit at the time he advised the Board that he was a “registered resident.” Liebler continued to use the PLTC tennis courts at will.

On May 12, 1992, the Board sent Liebler a notice of violation in an attempt to enforce the rule against use of the recreational facilities by nonresident owners. Liebler appeared before the PLTC grievance committee for a hearing on June 16, 1992. At the hearing, Liebler continued to insist he was entitled to use the recreational facilities based on the wording of his lease, but refused the committee’s request to view the lease itself.

After Liebler spoke to the committee, it considered the matter and recommended Liebler be fined $150 for past violations and be notified that future violations of the nonresident rule would incur additional fines. Liebler continued to use the facilities. PLTC continued to fine Liebler. Liebler has never paid any fines and PLTC has not taken legal action to attempt to collect them.

[1606] Liebler sued PLTC, seeking declaratory relief from the fines, and enforcement of equitable servitude by issuance of a temporary restraining order, and temporary and permanent injunctions against enforcement of the nonresident rule. Liebler also alleged breach of the covenant of enjoyment by PLTC, due to interference with Liebler’s claimed property right in the easement of enjoyment of the common recreational facilities.

After trial, the court determined the PLTC CC&Rs granted the Board the authority to create a rule excluding nonresident owners from use of the common recreational facilities. The court found the nonresident rule as enacted was reasonable and it had been reasonably enforced. The court made a partial ruling on the fines issue, finding the PLTC had the authority to impose fines on a member of the association, but declining to decide whether the fines were legally enforceable until an attempt was made to collect. Judgment was entered for PLTC.

STANDARD OF REVIEW

Liebler claims the CC&Rs do not provide for the rule excluding nonresident owners from use of the common areas, and also attacks the reasonableness of the rule in question. (1) It is clear that provisions restricting use and occupancy in recorded covenants governing a condominium project are “presumed to be reasonable and will be enforced uniformly against all residents of the common interest development unless the restriction is arbitrary, imposes burdens on the use of lands it affects that substantially outweigh the restriction’s benefits to the development’s residents, or violates a fundamental public policy.” (Nahrstedt v. Lakeside Village Condominium Assn., supra, 8 Cal.4th at p. 386). Rules made pursuant to recorded use restrictions are evaluated for their reasonableness in light of the interests of the residents as a whole, rather than the individual interests of a particular homeowner. (Ibid.)

DISCUSSION

I. Exclusion of Nonresident Owners From Common Areas

(2a) Liebler argues the provisions of article 8 of the PLTC CC&Rs create an easement of enjoyment in the common area to the benefit of a unit owner which cannot be abrogated by rules later adopted by the board of directors. Liebler points to specific portions of article 8 which provide:

“8. MEMBERS EASEMENTS OF ENJOYMENT IN THE COMMON AREA:

“The owners shall have the right and easement of enjoyment in and to the Common Area and such right and easement shall be appurtenant to and shall [1607] pass with the title to every assessed residential condominium subject to the following provisions:

“8.1 The right of the Corporation to limit the number of guests of members.

“8.2 The right of the Corporation to establish uniform rules and regulations pertaining to the use of the Common Area and the recreational facilities thereon.

“…. …. …. …. …. …. ….

“8.7 Any Member may delegate in accordance with the By-Laws, his right of enjoyment to the Common Area and facilities to the members of his family, his tenants or contract purchasers who reside on the Property.”

The rule to which Liebler objects is found in the rules and regulations of the PLTC as follows;[FN. 3]

“IV. RECREATIONAL AREA

“…. …. …. …. …. …. ….

“4.2 Use: The recreational facilities shall be used only by residents of PLTC and their guests. The right to use the facilities is appurtenant to the individual condominium unit and can not be separated from it (CC&R Section 8). Nonresident owners, whose units are rented or available for rent, do not have the use of the recreational facilities.”

Liebler’s argument is that by virtue of ownership, he gains an easement of enjoyment in the common area which he may continue to exercise until he transfers the actual title of the unit to a subsequent owner. He insists he is entitled to continue to use the common area so long as he owns the unit, and in addition, he may allow his tenants to also use the common area recreational facilities. He argues his right as an owner cannot be abridged by a rule that excludes nonresident owners from enjoyment of the recreational facilities.

Liebler relies primarily upon MaJor v. Miraverde Homeowners Assn. (1992) 7 Cal. App.4th 618, 625-626 [9 Cal. Rptr.2d 237], which held that [1608] similar rule impermissibly created two categories of members, terminating a right “originally granted by the CC&Rs to all members whether resident or not.” Although the present case also involves a dispute over use of tennis courts, there are significant legal and factual differences between the two. MaJor involved a completely physically disabled tenant who was an immediate family member of the owners, themselves former occupants, and the rule in question not only was promulgated long after their purchase, but appeared to have specifically singled out and targeted the owners for disparate treatment. (Id. at 621-622.)

The MaJor court itself noted the limits of its decision, which did not reach delegation of the right of enjoyment to a third party (MaJor v. Miraverde Homeowners Assn., supra, 7 Cal. App.4th at p. 626, fn. 1), or to the situation where, as here, a nonresident owner sought use of the tennis court both for himself and for a tenant. (Id. at p. 628, fn. 2.)

A further and central point distinguishing this case from MaJor, however, is the presence in the PLTC CC&Rs of a covenant specifically prohibiting severance and separate conveyance of an owner’s component interests in the private and common use areas. MaJor is silent as to whether the CC&Rs there contained such a provision, and the MaJor court never discussed and appears not to have contemplated the effect such a provision would have when read together with the rest of the CC&Rs. Here, however, the PLTC CC&R article 12.2 contains the following covenant:

“12. COVENANTS AGAINST PARTITION AND SEVERABILITY OF COMPONENT INTEREST:

“…. …. …. …. …. …. ….

“12.2 No Owner shall be entitled to sever his Unit from his related undivided interest to the Common Area for any purpose, and no component interest may be severally sold, conveyed, encumbered or hypothecated. Any violation or attempted violation of this provision shall be void and of no effect….”

The plain meaning of CC&R article 12.2 is that the exclusive use area (the unit) and the undivided interest in the common area are a unitary interest for conveyance purposes, and one may not be conveyed without the other. As noted by the court below, the most obvious way to attempt severability would be for an owner to attempt to convey his interest in the common area to a third party who would not otherwise have rights of access.

A less obvious but equally prohibited severance would occur if an owner attempted to convey the unit, but reserve the right of common area access to [1609] himself, thus denying the purchaser or lessee the use of the common area. What Liebler attempted was a variant on this form of separate conveyance.

The amendment to Liebler’s lease declaring that landlord and tenants shared the premises as cotenants, when there was no family or prior relationship with the lessees and no evidence Liebler ever shared the unit with them, can only have been an attempt to reserve to himself access to the common area while conveying a leasehold estate in the unit. This is contrary to CC&R article 12.2’s prohibition against separate conveyance.

When CC&R article 12.2 is read together with article 8.7, which declares members may delegate their rights of enjoyment to the common area to their tenants “who reside on the property,” it becomes clear the intent of the CC&R provisions is to have one set of users per unit: either the owner or the tenant, but not both. There is no mention of delegating common area rights and contemporaneously retaining them. Because under article 12.2 access to the common area cannot be severed from the unit, a conveyance of the unit to a tenant necessarily suspends the owner’s access to the common area for the length of the tenancy.[FN. 4]

Thus, unlike MaJor, where the rule against nonresident owners was held ultra vires to the board’s authority, here PLTC rule 4.2 is simply a clear statement of the effect of CC&R article 12.2, read together with CC&R article 8.7. None of Liebler’s rights have been extinguished or terminated, and at such time as he ceases leasing the unit and himself becomes a resident he will regain full access to the common area recreational facilities.

(3) As explained in Nahrstedt v. Lakeside Village Condominium Association, supra, 8 Cal.4th at page 372, “Use restrictions are an inherent part of any common interest development and are crucial to the stable, planned environment of any shared ownership arrangement. [Citation].” The Nahrstedt court said further: “The restrictions on the use of property in any common interest development may limit activities conducted in the common areas as well as in the confines of the home itself. [Citations.]

“…. …. …. …. …. …. ….

[1610] “… Ordinarily … ownership also entails mandatory membership in an owners association, which, through an elected board of directors, is empowered to enforce any use restrictions contained in the project’s declaration or master deed and to enact new rules governing the use and occupancy of property within the project. [Citations.] Generally, courts will uphold decisions made by the governing board of an owners association so long as they represent good faith efforts to further the purposes of the common interest development, are consistent with the development’s governing documents, and comply with public policy.
[Citation.]” (8 Cal.4th at pp. 373-374.)

(2b) Nahrstedt makes clear that restrictions contained in the recorded CC&Rs will be accorded a presumption of validity. (Nahrstedt v. Lakeside Village Condominium Assn., supra, 8 Cal.4th at p. 383.) In this case, the challenged rule is clearly within the contemplation of the relevant presumptively valid provisions of sections 8 and 12 of the CC&Rs, as well as sections 3.2.9 and 7.8.2. Because we hold the challenged rule is a proper implementation of the relevant sections of the CC&Rs, Liebler’s argument that the rule is not permitted by the CC&Rs must fail.

II. Reasonableness

(4a) The next argument raised by Liebler is that the rule which he challenges is not reasonable, and for this reason may not be enforced against him. (5) The ability to enforce use restrictions is not, of course, absolute. California Civil Code section 1354, subdivision (a) provides: “The covenants and restrictions in the declaration shall be enforceable equitable servitudes, unless unreasonable….” The Nahrstedtcourt defined unreasonable as those restrictions which “are wholly arbitrary, violate a fundamental public policy, or impose a burden on the use of affected land that far outweighs any benefit.” (Nahrstedt v. Lakeside Village Condominium Assn., supra, 8 Cal.4th at p. 382.)

In addition, enforcement of the restriction must be in good faith, not arbitrary or capricious, and by procedures which are fair and uniformly applied. (Nahrstedt v.Lakeside Village Condominium Assn., supra, 8 Cal.4th at p. 383.) The framework of reference, as the court made clear, is not the reasonableness specific to the objecting homeowner, but reasonableness as to the common interest development as a whole. (Id. at p. 386.) Thus, restrictions recorded in the declaration (here, the CC&Rs) are presumptively reasonable, and so long as uniformly applied, will be enforced by the courts unless they fall into one of the three categories of “unreasonable” restrictions. (Ibid.)

(4b) In this case Liebler’s claim that exclusion of nonresident owners 5850from the common recreational facilities is unreasonable must fail, since the [1611] evidence received below demonstrates (a) the restriction was reasonable in itself from the perspective of the development as a whole, rather than that of Liebler, and (b) this reasonable restriction was also neither arbitrarily nor unfairly applied, but was instead applied evenhandedly.

A. The Restriction Itself Is Reasonable.

Viewed from the perspective of this particular common interest development as a whole, there is no indication that the restriction is arbitrary.[FN. 5] To the contrary, as noted by the court below, there are valid reasons why members of a tennis-oriented residential condominium might choose to restrict access to their private tennis courts, since maintaining a low density ensures the courts will be available to residents, families and guests.

The number of tennis courts constructed in any particular development is likely determined during the design phase based on the proposed number of occupants, extrapolated from the number of units in the condominium. The added burden from use by nonresident owners in addition to tenants and owner-residents could potentially greatly increase the number of individuals competing for court space, and this decrease in availability lessens the attractiveness of a tennis-oriented facility.

We are unable to discern any issue of fundamental public policy in the action of a private association which determines to limit access to the available tennis courts to only those members actually in residence, when no restrictions whatsoever are placed on who may choose to reside in the condominium. Any owner may choose to reside on the premises, and thus have complete access to the common area recreational facility.[FN. 6]

Finally, viewed from the context of the common interest development as a whole, the burden on the individual owner is most certainly not disproportionate to the benefit to the whole. Presumably, a large factor in the decision of a prospective owner or tenant to move into a tennis-oriented facility is ready access to private courts. Maintaining a low density by excluding the public, and here, in long-standing restrictions, nonresident owners as well, [1612] confers a benefit on the residents for which many will pay a higher price. Thus Liebler himself has benefited from the restriction, since he is presumably thereby able to negotiate from his tenants a higher rent than he otherwise would have been able to obtain for the premises.

B. The Restriction Has Been Fairly Applied.

Liebler argued the restriction was unfairly and arbitrarily applied, and he had been singled out for exclusion in some sort of personal vendetta. Yet despite a full and fair hearing below, no evidence supported his allegations. The facts and documents stipulated to before trial, and later supported by uncontroverted testimony, indicate that after nonspecific complaints from residents to the Board about nonresidents using the facilities in contravention of the rules, the initial steps toward enforcement were directed at all nonresident owners who were using or potentially using the recreational facilities.

First, a list was compiled of owners with identification cards for use of the recreational facilities whose addresses were not in the confines of PLTC. Then, a form letter was sent to each asking for the return of the cards. With the single exception of Liebler, all nonresident owners complied with the request.

Liebler chose to respond with a letter that can at best be described as hostile. He continued to use the facilities whenever he wished, even after he was no longer in possession of his identification card, and went on using them at least until the date of trial. Faced with such flagrant disregard for its authority, the Board ultimately chose to fine Liebler for his repeated violations.[FN. 7]

Before fining Liebler, PLTC provided him notice and an opportunity for a hearing. He addressed the grievance committee in person. Although the Board continued to fine Liebler as he continued to violate the restriction, no attempt was made to collect the fines, and Liebler has suffered no out-of-pocket damages. Despite Liebler’s allegations of unfairness no evidence was introduced, even in his own testimony, that would show an attempt at selective enforcement.

Since the restriction has been both reasonably and evenly enforced against all to whom it applies, and the enforcement procedures have been fair, including advance written notice, compliance with a previously published and distributed schedule of fines, according Liebler the opportunity to be heard by the grievance committee before proceeding with fines, and since no [1613] evidence was introduced of selective enforcement, Liebler’s assertion of unreasonable enforcement must fail.

III. Authority to Impose Fines

(6a) Liebler last contends that, absent an express provision in the PLTC CC&Rs authorizing such, the Board lacks the authority to subject him to fines. CC&R article 3.2.9 states the corporation may “[e]stablish and publish such rules and regulations as the Board may deem reasonable in connection with the use, occupancy and maintenance of all of the Property….” PLTC rule 5.2 provides in part that “[e]nforcement shall be carried out in a fair and timely manner by means of fines … and other legal action as appropriate.” Section VI of the PLTC rules is a schedule of fines, providing that for “Misuse of the common area” the fine will be $50. Liebler received copies of the PLTC rules when he purchased his condominium unit. For the reasons which follow, we reject Liebler’s assertion these provisions cannot support the imposition of fines upon him.

(7) As noted in part I, ante, our Supreme Court in Nahrstedt v. Lakeside Village Condominium Assn., supra, 8 Cal.4th at page 373, stated that one of the characteristics of condominium ownership is “mandatory membership in an owners association, which, through an elected board of directors, is empowered to enforce any use restrictions contained in the project’s declaration or master deed and to enact new rules governing the use and occupancy of property within the project.”

While cautioning against abuses of such regulatory power (Nahrstedt v. Lakeside Village Condominium Assn., supra, 8 Cal.4th at pp. 373-374), the Nahrstedt court (as we have cited in part I, ante) went on to observe: “Generally, courts will uphold decisions made by the governing board of an owners association so long as they represent good faith efforts to further the purposes of the common interest development, are consistent with the development’s governing documents, and comply with public policy. [Citation.]” (8 Cal.4th at p. 374, italics added.)

(6b) Civil Code section 1363, subdivision (i) provides in pertinent part that “[i]f an association adopts or has adopted a policy imposing any monetary penalty, including any fee, on any association member for a violation of the governing documents or rules of the association … the board of directors shall adopt and distribute to each member … a schedule of the monetary penalties that may be assessed for those violations, which shall be in accordance with authorization for member discipline contained in the governing documents.”

[1614] Because the PLTC governing documents establishing the right to fine offending association members comply with the cited code section, and because the authorization for the challenged rules is itself contained in the recorded PLTC CC&Rs, Liebler is incorrect in asserting such fines are unauthorized. The trial court correctly found PLTC had the power to impose fines upon Liebler for his violations of PLTC rules, although that court did not address the question of the means by which such fines might be collected.[FN. 8]

CONCLUSION

The judgment is affirmed. Respondents to recover costs on appeal.

Work, Acting P.J., and Haller, J., concurred.

A petition for a rehearing was denied January 8, 1996, and appellant’s petition for review by the Supreme Court was denied February 29, 1996.

 

[FN. 1] The facts are not in dispute, having largely been stipulated to before trial. The trial was conducted without a jury, and neither party raises any issue of fact on appeal.

[FN. 2] For a description of “common interest” developments tracing the development of modern condominium ownership, see Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, 370-375 [33 Cal. Rptr.2d 63, 878 P.2d 1275].

[FN. 3] Although this rule was adopted in 1992, both parties agree a rule excluding nonresident owners from use of the recreational facilities has existed since at least 1977, predating Liebler’s ownership in PLTC by at least seven years.

[FN. 4] We also observe that Civil Code section 1362 provides in any event that “[u]nless the declarationotherwise provides, in a condominium project, or in a planned development in which the common areas are owned by the owners of the separate interests, the common areas are owned as tenants in common, in equal shares, one for each unit or lot.” (Italics added.) Necessarily, if the common areas are owned in shares of “one for each unit,” it is not logically possible (even absent the covenant to the contrary herein) to convey a lease in the unit together with the interest in the common areas, while also retaining the latter separately.

[FN. 5] Liebler argued below that the reasonableness of the rule was to be tested from his own perspective, citing Bernardo Villas Management Corp. v. Black (1987) 190 Cal. App.3d 153 [235 Cal. Rptr. 509] and Portola Hills Community Assn. v. James (1992) 4 Cal. App.4th 289 [5 Cal. Rptr.2d 580]. These cases have been disapproved in Nahrstedt v. Lakeside Village Condominium Assn., supra, 8 Cal.4th at pages 385-386, requiring instead the focus be on “the restriction’s effect on the project as a whole, not on the individual homeowner.” (Id. at p. 386.)

[FN. 6] Liebler’s amended lease agreement declaring that he and his tenants “share the premises as cotenants” is ineffectual in light of the admitted fact Liebler does not reside on the premises.

[FN. 7] We do not here decide the separate question of whether such fines are legally enforceable. See part III, post.

[FN. 8] We also need not here reach the question of the means by which such fines may be collected, as there is at present no actual case or controversy concerning this matter. Both sides agree no attempt has been made to collect the fines, and absent such collection efforts, a determination in the abstract of the manner in which PLTC might collect such fines would constitute an advisory opinion. “`The rendering of advisory opinions falls within neither the functions nor the jurisdiction of this court.’ (People ex rel. Lynch v. Superior Court (1970) 1 Cal.3d 910, 912 [83 Cal. Rptr. 670, 464 P.2d 126].)” (Salazar v. Eastin (1995) 9 Cal.4th 836, 860 [39 Cal. Rptr.2d 21, 890 P.2d 43].) That holding applies here.

Termites & Wood-Destroying Pests

An association is generally responsible for maintaining and repairing the common areas within the association’s development, and the owners are responsible for maintaining and repairing their respective separate interests (their lots or units). (Civ. Code § 4775(a); See also “Maintenance Responsibilities (Generally).”) When maintenance or repair is occasioned by the presence of “wood-destroying pests or organisms” (i.e., termites), Civil Code Section 4780 generally controls whether the association or the owners are responsible for such maintenance or repairs. The allocation of responsibility under Section 4780 is dependent upon the form of the association’s development (the CID), as well as any applicable provisions that may be contained in the association’s declaration (CC&Rs).

  • Community Apartment Project – in a community apartment project, the association is responsible for the repair and maintenance of the common area occasioned by the presence of wood-destroying pests or organisms, unless otherwise provided in the CC&Rs. (Civ. Code § 4780(a).)
  • Condominium Project – in a condominium project, the association is responsible for the repair and maintenance of the common area occasioned by the presence of wood-destroying pests or organisms, unless otherwise provided in the CC&Rs. (Civ. Code § 4780(a).)
  • Stock Cooperative – in a stock cooperative, the association is responsible for the repair and maintenance of the common area occasioned by the presence of wood-destroying pests or organisms, unless otherwise provided in the CC&Rs. (Civ. Code § 4780(a).)
  • Planned Development – in a planned development (or “PUD”), unless a different maintenance scheme is provided in the CC&Rs, each owner of a separate interest is responsible for the repair and maintenance of that separate interest as may be occasioned by the presence of wood-destroying pests or organisms. (Civ. Code § 4780(b).)

Delegation of Maintenance Responsibility to Association in Planned Development
Unless otherwise provided in the CC&Rs, the owners within planned developments are responsible for the repair and maintenance of their respective separate interests as may be occasioned by the presence of wood-destroying pests or organisms. (Civ. Code § 4780(b).) However, Section 4780 provides the possibility for the owners (the association’s members) to delegate that responsibility to the association:

“Upon approval of the majority of all members of the association, pursuant to Section 4065, that responsibility may be delegated to the association, which shall be entitled to recover the cost thereof as a special assessment.” (Civ. Code § 4780(b).)

Method of Treatment Employed by Association
The method in which the association treats wood-destroying pests or organisms (i.e., tenting, spot treatment, etc.), as well as the materials used in the treatment, are within the discretion of the board and is entitled to judicial deference. (See Lamden v. La Jolla Shores Clubdominium HOA (199) 21 Cal.4th 249, 270 (“Neither the Declaration nor Civil Code Section [4780] reasonably can be construed to mandate any particular mode of termite treatment.”).)

Removal of Occupants for Pest Treatment
There may be instances where the treatment of wood-destroying pests or organisms will require owners and occupants within the association’s development to vacate their respective units. In those instances, Civil Code Section 4785 grants the association the authority to “cause the temporary, summary removal of any occupant of a common interest development for such periods and at such times as may be necessary for prompt, effective treatment of wood-destroying pests or organisms.” (Civ. Code § 4785(a).)

Accommodations & Relocation Costs During Treatment Period – Occupants and/or owners which are required to vacate the association’s development are responsible for their own accommodations. (Civ. Code § 4785(b).) This is consistent with Civil Code Section 4775(b) which states that “[t]he costs of temporary relocation during the repair and maintenance of the areas within the responsibility of the association shall be borne by the owner of the separate interest affected.” (Civ. Code § 4775(b); See also “Relocation Costs.”)

Notice Requirements – When occupants and/or owners will be required to vacate their respective units, the association is required to give notice of the need to vacate to the occupants and the owners, not less than fifteen (15) days nor more than thirty (30) days prior to the date of the temporary relocation. (Civ. Code § 4785(b).) The notice must state (i) the reasons for the relocation, (ii) the date and time of the beginning of the treatment, (iii) the anticipated date and time of termination of treatment, and (iv) that the occupants will be responsible for their own accommodations during the temporary relocation. (Civ. Code § 4785(b).)

Delivery of Notice – Notice of the need to vacate is deemed complete upon either:

“Occupant” Defined – For the purposes of Section 4785, “occupant” means “an owner, resident, guest, invitee, tenant, lessee, sublessee or other person in possession of the separate interests.” (Civ. Code § 4785(d).)

Exclusive Use Common Area Maintenance

Exclusive use common area is a portion of common area designated by the CC&Rs for the exclusive use of one or more, but fewer than all, of the owners within the association’s development. (Civ. Code § 4145(a).) Civil Code Section 4145(b) lists the following components as exclusive use common area, subject to any contrary provisions in an association’s CC&Rs:

“…shutters, awnings, window boxes, doorsteps, stoops, porches, balconies, patios, exterior doors, doorframes, and hardware incident thereto, screens and windows or other fixtures designed to serve a single separate interest, but located outside the boundaries of the separate interest, are exclusive use common area allocated exclusively to that separate interest.” (Civ. Code § 4145(b).)

Modifying Provisions Contained in CC&Rs
The classification of the above components as exclusive use common area assumes that there are no contrary provisions in an association’s CC&Rs. If such contrary provisions exist, the CC&R provisions control. (Civ. Code § 4145(b).) Modern CC&Rs and condominium plans for condominium projects often contain provisions which clearly define what areas/components are exclusive use common area, as well as the owners maintenance obligations for those areas.

Maintained by Owner
The provisions of an association’s CC&Rs typically outline the scope of an owner’s maintenance responsibilities for the exclusive use common area appurtenant to his/her unit. In the event that such provisions are absent or ambiguous, Civil Code Section 4775 makes the owner responsible for maintaining the exclusive use common area.

“(a) Unless otherwise provided in the declaration of a common interest development…the owner of each separate interest is responsible for maintaining that separate interest and any exclusive use common area appurtenant to the separate interest.” (Civ. Code § 4775(a).)

“Designed to Serve a Single Separate Interest”
Civil Code Section 4145 states in pertinent part that “fixtures designed to serve a single separate interest, but located outside the boundaries of the separate interest, are exclusive use common area allocated exclusively to that separate interest.” (Civ. Code § 4145(b). (Italics added).) However, in the event that a particular fixture/component is not explicitly defined as exclusive use common area within the CC&Rs or condominium plan, the association may not solely rely on whether it believes that fixture/component “is designed to serve a single separate interest” when making the determination that the fixture/component is in fact exclusive use common area to be maintained by the owner. (See Dover Village Association v. Jennison (2010) 191 Cal.App.4th 123.)

Legislation Affecting Repair & Replacement of Exclusive Use Common Area
The maintenance responsibilities under Civil Code Section 4775 are somewhat ambiguous with regard to exclusive use common area; Section 4775 fails to state whether an owner is additionally responsible for the “repair and replacement” of exclusive use common area, not simply “maintenance.” HOA industry practice has held that it is the responsibility of the association to repair or replace exclusive use common area. Legislation that was signed into law on September 18, 2014 will resolve the ambiguity by codifying industry practice. Effective January 1, 2017, that legislation, AB 968 (Gordon), will amend Section 4775 to state that, unless otherwise provided for in the CC&Rs, the owner is required to maintain exclusive use common area, and the association is responsible to repair and replace exclusive use common area.

Exclusive Use Common Area Damage Caused by a Member
Where damage to exclusive use common area is caused by the acts of the owner, the owner’s guest or tenant, any repair expenses incurred by the association may be recoverable through levying a reimbursement assessment against the owner. (See “Reimbursement & Compliance Assessments.”)

Common Area Maintenance

Everything that is located within an association’s development except for the “separate interests” (the units or lots owned by the association’s individual members) constitutes common area. (Civ. Code § 4095(a).) One of the primary responsibilities of an association is to maintain, repair and replace the common area. Those responsibilities are typically outlined within the provisions of an association’s declaration (CC&Rs). In the event that such provisions are absent or ambiguous, Civil Code Section 4775 establishes an association’s default common area maintenance responsibilities:

 “(a) Unless otherwise provided in the declaration of a common interest development, the association is responsible for repairing, replacing, or maintaining the common area, other than exclusive use common area, and the owner of each separate interest is responsible for maintaining that separate interest and any exclusive use common area appurtenant to the separate interest.” (Civ. Code § 4775(a).)

Board Duty to Inspect Common Area
Upholding an association’s common area maintenance responsibilities places a duty on the board of directors to inspect the common areas at least once every three (3) years and to prepare a reserve study. (Civ. Code § 5550; See also “Reserve Study.”) The reserve study is used to determine the amount of reserve funds that should be set aside for the maintenance and repair of major components which the association is obligated to maintain, and which have a remaining useful life of less than thirty (30) years. (Civ. Code § 5550; See also “Reserve Study.”)

Methods of Maintenance & Judicial Deference
In the case of Lamden v. La Jolla Shores Clubdominium HOA (1999) 21 Cal.4th 249, the California Supreme Court adopted a rule known as the “Rule of Judicial Deference.” The Rule of Judicial Deference generally requires courts to defer to maintenance decisions made by HOA boards even if a reasonable person would have acted differently in the same situation:

“Where a duly constituted community association board, upon reasonable investigation, in good faith and with regard for the best interests of the community association and its members, exercises discretion within the scope of its authority under relevant statutes, covenants and restrictions to select among means for discharging an obligation to maintain and repair a development’s common areas, courts should defer to the board’s authority and presumed expertise. Thus, we adopt today for California courts a rule of judicial deference to community association board decisionmaking that applies, regardless of an association’s corporate status, when owners in common interest developments seek to litigate ordinary maintenance decisions entrusted to the discretion of their associations’ boards of directors.” (Lamden, at 253.)

The justification for such deference is premised upon “the relative competence, over that of courts, possessed by owners and directors of common interest developments to make the detailed and peculiar economic decisions necessary in the maintenance of those developments.” (Lamden, at 270-271.) The Rule of Judicial Deference is intended to “minimiz[e] the likelihood of unproductive litigation” over the discretionary maintenance decisions made by the board, and to help “foster stability, certainty and predictability in the governance and management of common interest developments.” (Lamden, at 271.)

Deference May Not Extend to a Failure to Investigate & Address Maintenance Problems
While the board is granted deference by the courts in determining how the common areas are to be maintained, an association may be held liable for its failure to investigate maintenance problems and to take reasonable action:

“The judicial deference doctrine does not shield an association from liability for ignoring problems; instead it protects the Association’s good faith decisions to maintain and repair common areas….the essence of an association’s duty to maintain and repair is a duty to act based on reasoned decision making.” (Affan v. Portofino Cove HOA (2010) 189 Cal.App.4th 930, 942 (Italics original).)

Deference May Not Extend to Board’s Interpretation of Association Maintenance Responsibilities
Judicial deference may not extend to the ways in which the board interprets the scope of the association’s maintenance responsibilities under its CC&Rs. In Dover Village Association v. Jennison (2010) 191 Cal.App.4th 123, the association argued that the determination made by its board as to whether a portion of sewer line was exclusive use common area to be maintained by the unit owner (and thus, not common area to be maintained by the association) was a decision committed to the board’s discretion and thus entitled to judicial deference. The court disagreed with the association, noting that “[t]here is an obvious difference between a legal issue over who precisely has the responsibility for a sewer line and how a board should go about making a repair that is clearly within its responsibility. But we know of no provision in the Davis-Stirling Act or the CC&Rs that makes the Association or its board the ultimate judge of legal issues affecting the development.” (Dover, at 130.)

Common Area Damaged Caused by a Member
Where damage to common area is caused by the acts of a member, the member’s guest or tenant, any repair expenses incurred by the association may be recoverable through levying a reimbursement assessment against the member. (See “Reimbursement & Compliance Assessments.”)

Standard of Maintenance Controlled by CC&Rs
The standard of maintenance may be controlled by language within an association’s CC&Rs (e.g., the common areas must be maintained in “a first class condition”). An association’s failure to perform maintenance in accordance with those standards may constitute a breach of contract by the association. (See Sands v. Walnut Gardens Condominium Ass’n Inc. (2019) 35 Cal.App.5th 174.)

Related Links

Limitation on HOA Tort Liability for Maintenance Failures
– Published on HOA Lawyer Blog (January 2020)

Maintenance Responsibilities (Generally)

As discussed below, the maintenance responsibilities of an association as compared to those of its individual members (the owners of property within the association) depend primarily on whether the item or component to be maintained is classified as common area, exclusive use common area, or is included within a member’s “separate interest” (the real property owned exclusively by the member).

Common Area Maintenance
One of the primary responsibilities of an association is to maintain, repair and replace the common area improvements located throughout the association’s development. Those responsibilities are typically outlined within the provisions of an association’s declaration (CC&Rs). In the event that such provisions are absent or ambiguous, Civil Code Section 4775 establishes an association’s default maintenance, repair, and replacement responsibilities:

“…unless otherwise provided in the declaration of a common interest development, the association is responsible for repairing, replacing, and maintaining the common area.” (Civ. Code § 4775(a)(1).)

Upholding an association’s common area maintenance, repair, and replacement responsibilities places duties on the association’s board of directors to:

  • Inspect the common areas at least once every three (3) years and to prepare a reserve study in order to determine the amount of reserve funds that should be set aside for the maintenance and repair of major components which the association is obligated to maintain and which have a remaining useful life of less than thirty (30) years. (Civ. Code § 5550; See also “Reserve Study.”)
  • Investigate maintenance problems and take action to address them. While the board is granted deference by the courts in determining how the common areas are to be maintained, an association may be held liable for its failure to investigate maintenance problems and to take reasonable action:

“The judicial deference doctrine does not shield an association from liability for ignoring problems; instead it protects the Association’s good faith decisions to maintain and repair common areas….the essence of an association’s duty to maintain and repair is a duty to act based on reasoned decision making.” (Affan v. Portofino Cove HOA (2010) 189 Cal.App.4th 930,942.)

Common Area Damaged Caused by a Member
Where damage to common area is caused by the acts of a member, the member’s guest or tenant, any repair expenses incurred by the association may be recoverable through levying a reimbursement assessment against the member. (See “Reimbursement & Compliance Assessments.”)

**For more information, see “Common Area Maintenance.”

Exclusive Use Common Area Maintenance
A subset of common area is “exclusive use common area” (aka “restricted common area”). Exclusive use common area is a portion of common area designated by the CC&Rs for the exclusive use of one or more, but fewer than all, of the owners within the development. (Civ. Code § 4145(a).) Exclusive use common areas are found primarily within condominium projects (i.e., patios, balconies, porches, window boxes, etc.). The maintenance, repair, and replacement responsibilities for exclusive use common areas are typically controlled by the provisions of an association’s CC&Rs and/or condominium plan. Where those provisions are absent or ambiguous, the provisions of Civil Code Section 4775 generally allocate the maintenance responsibilities for exclusive use common areas to the individual unit owners, while the association is responsible for repairing or replacing the exclusive use common area.

**For more information, see “Exclusive Use Common Area Maintenance.”

Separate Interest Maintenance
The real property within an association’s development that is owned exclusively by a member is referred to as the member’s “separate interest.” The types of separate interests within a particular development are based upon the form of the development itself. For example, in a Planned Unit Development (or “PUD”), a member’s separate interest includes an individually owned lot (or parcel), as well as the residential structures and other improvements located on the lot. (Civ. Code § 4185(a)(3).) In a condominium project, a member’s separate interest is a “unit” that consists of a block of airspace bounded by the interior, unfinished surfaces of the unit’s perimeter walls, floors and ceilings. (Civ. Code §§ 4185(a)(2), 4125; See also “Airspace Condominium Units.”) Whether any particular component or improvement is included within a member’s separate interest may also be controlled by the provisions of the association’s CC&Rs and/or condominium plan.

Unless otherwise provided in the CC&Rs, members bear the maintenance responsibilities for their respective separate interests. (Civ. Code § 4775(a)(2). )

Duty to Enforce

An association has the authority to enforce violations of the association’s governing documents. (Civ. Code § 5975; See also “Standing to Litigate.”) Enforcement of the restrictions contained in the governing documents (i.e., in the CC&Rs) is considered the responsibility of an association. (Duffey v. Superior Court (1992) 3 Cal.App.4th 425, 431.) An association may be held liable for its failure to enforce those restrictions. (Posey v. Leavitt (1999) 229 Cal.App.3d 1236; See also “Failure to Enforce.”)

Discretion to Litigate
An association’s duty to enforce the governing documents does not necessarily require the board to litigate every violation of the association’s governing documents. A board has discretion when deciding whether to commence litigation; that discretion allows for the board to weigh various factors such as the severity of the violation at issue, the anticipated costs of litigation, and the likely outcome of litigation when deciding whether or not to litigate a particular violation. (Beehan v. Lido Isle Community Assn. (1977) 70 Cal.App.3d 858.)

Suspension of Privileges

The privileges that an association’s members have to use and enjoy the association’s common area facilities (i.e., pool, clubhouse, recreational facilities, etc.) are not absolute; they are subject to reasonable rules and regulations (“operating rules”) adopted by the association that govern the use of those areas. (Civ. Code § 4355(a); Liebler v. Point Loma Tennis Club (1995) 40 Cal.App.4th 1600).) If an association adopts and publishes a disciplinary policy (i.e., a “fine policy“) for violations of the association’s governing documents, and that policy also includes the suspension of a member’s privileges as a potential disciplinary measure, the association typically has the authority to suspend a member’s privileges while the violation remains uncorrected. Suspending a member’s privileges while the member is delinquent in assessments may also be incorporated into the association’s collection policy. However, the authority for an association to suspend privileges for assessment delinquencies or other governing document violations is not explicitly provided for in the Davis-Stirling Act and will therefore be dictated by the provisions of the association’s governing documents.

Disallowed Suspensions

  • Access to Separate Interest – An association may not deny a member physical access to the member’s separate interest (to the member’s unit or lot), either by restricting access through the common area to the separate interest, or by restricting access solely to the separate interest. (Civ. Code § 4510; See also “Rights of Access to Separate Interest.”)
  • Utility Services – The California Supreme Court has analogized associations to “landlords” in certain respects. (See Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 499.) Landlords may not “willfully cause, directly or indirectly, the interruption or termination of any utility service furnished the tenant, including, but not limited to, water, heat, light, electricity, gas, telephone, elevator, or refrigeration, whether or not the utility service is under the control of the landlord.” (Civ. Code § 789.3(a).) An association may therefore be prohibited from suspending or “shutting off” a member’s utility services for a violation, though no case law or statutes explicitly address this issue.
  • Attendance of Board Meetings – Civil Code Section 4925 grants any member the right to attend board meetings (except executive session meetings), and to address the board during open forum. (Civ. Code § 4925; See also “Board Meeting Attendance Rights” and “Open Forum.”)
  • Voting Rights –  Due to the language of Civil Code Section 5105 (regarding the election rules that an association is legally required to adopt), associations are not able to deny a ballot to a member “for any reason other than not being a member at the time when ballots are distributed.” (Civ. Code § 5105(g)(1); See also “Suspension of Voting Rights.”)

Procedural Requirements
Civil Code Section 5855 contains procedural requirements that must be satisfied before a disciplinary measure imposed upon a member becomes effective. Those requirements include:

  • Notice and Meeting (Hearing) – When the board intends to impose discipline in the form of a fine, the board must provide the member with individual notice of the meeting (hearing) where the board is to consider imposing discipline at least ten (10) days prior to the meeting. (Civ. Code § 5855(a).) However, when the discipline will involve suspension of the member’s privileges, Corporations Code Section 7341 requires at least fifteen (15) days advance notice of the meeting. (Corp. Code § 7341(c)(2).) The notice must contain, “at a minimum, the date, time and place of the meeting, the nature of the alleged violation for which a member may be disciplined…and a statement that the member has a right to attend and may address the board at the meeting.” (Civ. Code  § 5855(b).) The board must meet with the member in executive session if requested by the member. (Civ. Code § 5855(b).)
  • Notice of Decision – If the board imposes discipline, the board must, within fifteen (15) days following the action, “provide the member with a written notification of the decision, by either personal delivery or individual delivery pursuant to Section 4040.” (Civ. Code § 5855(c).)

For more information on these procedural requirements, see “Notice & Hearing Requirements.”

Civil Code Section 789.3. Landlord Interruption of Utility Services Prohibited.

(a) A landlord shall not with intent to terminate the occupancy under any lease or other tenancy or estate at will, however created, of property used by a tenant as his residence willfully cause, directly or indirectly, the interruption or termination of any utility service furnished the tenant, including, but not limited to, water, heat, light, electricity, gas, telephone, elevator, or refrigeration, whether or not the utility service is under the control of the landlord.

(b) In addition, a landlord shall not, with intent to terminate the occupancy under any lease or other tenancy or estate at will, however created, of property used by a tenant as his or her residence, willfully:

(1) Prevent the tenant from gaining reasonable access to the property by changing the locks or using a bootlock or by any other similar method or device;

(2) Remove outside doors or windows; or

(3) Remove from the premises the tenant’s personal property, the furnishings, or any other items without the prior written consent of the tenant, except when done pursuant to the procedure set forth in Chapter 5 (commencing with Section 1980) of Title 5 of Part 4 of Division 3.

Nothing in this subdivision shall be construed to prevent the lawful eviction of a tenant by appropriate legal authorities, nor shall anything in this subdivision apply to occupancies defined by subdivision (b) of Section 1940.

(c) Any landlord who violates this section shall be liable to the tenant in a civil action for all of the following:

(1) Actual damages of the tenant.

(2) An amount not to exceed one hundred dollars ($100) for each day or part thereof the landlord remains in violation of this section. In determining the amount of such award, the court shall consider proof of such matters as justice may require; however, in no event shall less than two hundred fifty dollars ($250) be awarded for each separate cause of action. Subsequent or repeated violations, which are not committed contemporaneously with the initial violation, shall be treated as separate causes of action and shall be subject to a separate award of damages.

(d) In any action under subdivision (c) the court shall award reasonable attorney’s fees to the prevailing party. In any such action the tenant may seek appropriate injunctive relief to prevent continuing or further violation of the provisions of this section during the pendency of the action. The remedy provided by this section is not exclusive and shall not preclude the tenant from pursuing any other remedy which the tenant may have under any other provision of law.

Fine Policy & Fine Schedule

There is no legal requirement for an association to impose monetary penalties (fines) on members for violations of the association’s governing documents, though such requirements may be contained within the provisions of an association’s governing documents. If an association adopts a policy for imposing fines, Civil Code Section 5850 requires the association to adopt a “schedule” of fines that may be imposed for violations, and to distribute the fine schedule to the membership as part of the association’s annual policy statement. (Civ. Code §§ 5310(a)(8), 5850(a).)

Fines Restricted to Amounts Stated in Fine Schedule
Any fine that is imposed on a member for a violation of the governing documents may not exceed the amount of the applicable fine stated in the fine schedule that is in effect at the time of the violation. (Civ. Code § 5850(c).)

Amending the Fine Policy & Fine Schedule
The fine policy and fine schedule of an association constitutes an “operating rule” within the meaning of Civil Code Section 4355. (Civ. Code § 4355(a)(3).) Accordingly, a change to the fine policy or fine schedule must be performed in accordance with the rule change procedure mandated by Civil Code Section 4360. In sum, that procedure requires 28 days advance notice of the proposed rule change, a decision to make the change at a board meeting, and notice to the membership within fifteen (15) days after the decision has been made. (See “Adopting & Amending Operating Rules.”)

Relocation Costs

Relocation Costs Borne by Homeowner
The scope of items which an association is responsible to maintain and repair can be significant. This is especially true in  condominium projects;  the structural elements of the residential buildings housing the condominium units are often classified as common area that is maintained and repaired by the association. (See “Common Area Maintenance” and “Airspace Condominium Units.”) Undertaking such maintenance and repairs may require owners and occupants within the association’s development to temporarily vacate their units and, as a result, incur hotel expenses and other relocation costs while the repairs are being performed. In these instances, Civil Code Section 4775 states that relocation costs are to be borne by the owners:

“The costs of temporary relocation during the repair and maintenance of the areas within the responsibility of the association shall be borne by the owner of the separate interest affected.” (Civ. Code § 4775(c).)

Termite Treatment
When an association’s maintenance or repair efforts include the treatment of “wood-destroying pests or organisms” (i.e., termites), the occupants which are required to vacate their units during the treatment period are responsible to bear their respective relocation costs, and the association is additionally required to provide advance notice to the owners and the occupants of that fact. (Civ. Code § 4785(b); See also “Termites & Wood-Destroying Pests.”)