Property owners' associations and common interest communities

Black-letter propositions

1. 01

   A common interest development is created when a separate interest coupled with an interest in the common area or membership in the association is conveyed and the declaration, any condominium plan, and any required map are recorded.

2. 02

   The covenants and restrictions in the recorded declaration are enforceable equitable servitudes unless unreasonable, and they bind all owners of separate interests; unless the declaration says otherwise, they may be enforced by any owner or by the association, and the prevailing party in an enforcement action recovers reasonable attorney's fees.

3. 03

   Nahrstedt v. Lakeside Village Condominium Association gives recorded use restrictions a presumption of validity, requires the challenger to show unreasonableness under the deferential standard for equitable servitudes, and holds that a restriction must be uniformly enforced unless its burdens on affected properties so substantially outweigh its benefits that it should not be enforced against any owner.

4. 04

   A court will not enforce a restriction that violates a fundamental public policy, such as one that discriminates by race, or one that is arbitrary because it bears no rational relationship to the protection, preservation, operation or purpose of the land.

5. 05

   Regular and special assessments are a debt of the owner at the time they are levied, and if delinquent the association may recover collection costs, attorney's fees, a capped late charge and capped interest.

6. 06

   Unless the declaration provides otherwise, the association is responsible for repairing, replacing and maintaining the common area, and each owner maintains the owner's own separate interest.

7. 07

   The association has standing in its own name, without joining members, to enforce the governing documents and to sue for damage to the common area.

Use this attack sequence under time

Common wrong turns

• Reasonableness is judged for the restriction as a whole and for the community, not for one owner's circumstances.
• The presumption in Nahrstedt concerns restrictions in the recorded declaration, and a later board rule is enforceable under the statute as a governing document but is analyzed on its own terms.
• A restriction that discriminates on a protected ground is unenforceable whatever the declaration says.

Worked example

A recorded declaration for a large condominium bans keeping dogs and cats. An owner who keeps indoor cats that make no noise sues to stop enforcement, saying the ban is unreasonable as applied to her.

Practice this topic

How the community is created and enforced

California Civil Code section 4200 says a common interest development is created whenever a separate interest coupled with an interest in the common area or membership in the association is conveyed, provided a declaration, any condominium plan, and any required final or parcel map are recorded. Section 5975 says the covenants and restrictions in the declaration are enforceable equitable servitudes unless unreasonable, and that they bind all owners of separate interests. Unless the declaration states otherwise, they may be enforced by any owner or by the association, or both. Governing documents other than the declaration may be enforced by the association against an owner or by an owner against the association. The prevailing party in an action to enforce the governing documents recovers reasonable attorney's fees and costs.

Section 5980 gives the association standing to sue in its own name, without joining members, to enforce the governing documents and to recover for damage to the common area or to separate interests it must maintain.

The presumption of validity

In Nahrstedt v. Lakeside Village Condominium Association, the California Supreme Court reviewed a ban on pets in a 530-unit condominium and held that the legislature had given recorded restrictions a presumption of validity, requiring challengers to show unreasonableness by the deferential standard applicable to equitable servitudes. Enforcement does not depend on the conduct of one owner, so a restriction must be uniformly enforced unless the owner can show that its burdens on the affected properties so substantially outweigh its benefits that it should not be enforced against any owner.

The opinion also lists limits. Courts will not enforce restrictions that violate fundamental public policy, such as a racial restriction, or that are arbitrary, meaning they bear no rational relationship to the protection, preservation, operation or purpose of the affected land. These limits apply the general rule that a restrictive covenant is not enforced when the harm it causes is so disproportionate to the benefit that it should not be enforced.

Assessments and maintenance

California Civil Code section 5650 makes regular and special assessments a debt of the owner of the separate interest at the time they are levied. An assessment is delinquent 15 days after it is due, unless the declaration provides a longer time. If it is delinquent, the association may recover reasonable collection costs, including attorney's fees, a late charge not exceeding the greater of 10 percent of the delinquent assessment or ten dollars, unless the declaration specifies less, and interest at an annual rate not exceeding 12 percent, starting 30 days after the assessment is due.

Section 4775 provides that, unless the declaration says otherwise, the association is responsible for repairing, replacing and maintaining the common area, and the owner of each separate interest is responsible for maintaining that separate interest.

Frequently asked questions