Reader Questions - Which Law do we Follow?

Ms. Richardson,

Recently we have had issues with projects and proposed projects that involve city regulations versus CC&R restrictions. Our board seems to think that the requirements in our CC&Rs are unenforceable if the city has already approved the projects. I contend that the CC&Rs must be met as well as city requirements, with the more restrictive (usually) CC&Rs having the greater legal power (for lack of a better word).

Please share any information you have about this. Thank you,

J.D., Solana Beach

Dear J.D.,

Your CC&Rs and governing documents are private restrictions governing your community. By becoming an owner in the community each member automatically becomes part of an agreement to live by those restrictions. Similarly, by moving into the municipality of Solana Beach, each owner also becomes subject to the laws and ordinances of the city, in addition to other applicable county, state and federal laws. The law of the CC&Rs is based in contract, while the law of the governmental authorities is public law. HOA members must heed both.

Some owner modifications do not require building permits but may still require association approval. An example would be changing the paint color of one’s garage door, which probably would not require a permit in most places but would clearly be an association issue for permission. Conversely, it is possible a building permit could be required for something which may not require HOA permission – such as replacing a water heater.

Some cities require a homeowner show HOA approval of a home modification before issuing a building permit. However, with respect to solar installations, Government Code 65850.5(i) bars cities from doing so. This can be misleading to homeowners who may be led to think that the HOA has no say in the matter – this is incorrect.

HOA homeowners should check both with their association and the building authority before making changes to their home.

Some homeowners consider the approval of the building department is more important than the HOA, and decide it is “better to ask forgiveness than permission.” This can prove to be a bad idea, such as in the 1992 case of Harbor View v. Torley, in which the homeowner added to their home without HOA permission, and then was ordered by the court to remove the addition and pay the HOA attorney fees.

Thanks,
Kelly

Dear Mr. Richardson,

Nowhere in [our governing documents] is there a section that violates the 1st Amendment of the Constitution. However, the board made a new rule that does, barring politics in the club house. Prohibiting the use of facilities for any purpose that does not promote hate is, in my opinion, a violation of the 1st Amendment. May I have your opinion as to where the Constitution starts and stops in an HOA?

Thank You,

R.G, Moreno Valley

Dear R.G.,

HOA elections are governed by the Davis-Stirling Act sections regarding elections, at Civil Code Sections 5100-5145. Per Section 5105(a)(2), associations which have common area meeting space must make it available to candidates in HOA elections at no cost. So, if an election is in progress, the HOA may not ban campaign meetings in the clubhouse.

The U.S. Constitution does not govern this, because the association is a private organization of members.

Hope this is helpful,
Kelly

Written by Kelly G. Richardson

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to [email protected]. Past columns at www.hoahomefront.com. All rights reserved®.