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Code Blues : Rules That Govern Life in Homeowners Associations Are Being Challenged in Court by Angry Owners

COMMON GROUND. Second of three parts


When you move into a homeowners association--be it a condominium, a townhome or a master-planned community--you must agree to abide by rules and regulations that restrict both what your property can look like and what you can do there.

It is these regulations--formally known as "covenants, conditions and restrictions" (CC&Rs)--that have been the most controversial aspect of the homeowners association boom.

As associations become more popular, and particularly as more new housing includes mandatory homeowners associations, CC&Rs are beginning to be challenged in court by homeowners angry at the restrictions on their lifestyles.

Those debating CC&Rs usually form two camps--those who live with the restrictions without complaint because of the neat, uniform look they provide and because of their stabilizing influence on property values, and those who find the regulations Draconian and their enforcement oppressive.

The latter camp usually bolsters its argument with a list of nationally publicized horror stories involving overzealous boards of directors enforcing ridiculous regulations.

Among the most infamous cases are the Santa Ana grandmother whose condo association cited her for "kissing and doing bad things" while parked in the complex's circular driveway one night. In reality, the woman said, she had given a friend a good-night kiss.

Then there was the New Jersey man whose homeowners association restricted residents to people 45 years of age and older. He was told to move out or get a divorce after he married a 43-year-old woman.

Perhaps the most infamous of all the CC&R stories is the Boca Raton, Fla., homeowners association resident who had to attend a court-supervised weigh-in of his 29 1/2-pound dog. His association had a 30-pound weight limit for pets.

Many similar stories have also captured national attention, including several in which patriotic homeowners who wanted to display large American flags or post signs supporting the Gulf War were ordered to take down their displays or risk fines.

CC&Rs can range from the obvious, such as not parking cars on your lawn and not painting your house chartreuse, to the onerous, such as how many people can spend the night in your home and what kind of swing set your children can play on.

The problem that so often arises is people who do not read the rules before they move in and may not even realize they exist until they find themselves in violation.

Political scientist Evan McKenzie, a former homeowners association attorney who has written a book about associations called "Privatopia," criticizes CC&Rs as archaic and written in confusing legal jargon.

"It is nonsense to state that people who live in this form of housing have agreed to live by the rules," he said. "The majority of them are ignorant about what they are getting into when they buy property in one of these common-interest developments.

"Real estate agents have zero incentive to tell them, and really, the rules are just too complex for most people. You get 200 pages of rules and regulations and there is no way anyone could integrate that into their life. It cries out for being a doorstop."

But other experts disagree.

"In the past five to 10 years, the CC&Rs have gotten a lot easier to understand than many people want to admit," said Jan Hickenbottom, a property manager and consultant who writes the "Condo Q&A" column for The Times.

John Paul Hanna, a Bay Area attorney specializing in real estate law and an author of several books about homeowners associations, says people who live in these developments should know they must follow the rules.

"Invariably, there are rugged individualists who refuse to live by the rules, or those who are willing and financially able to challenge the rules in court," Hanna said.

"But by and large, people do have a right to set up their own communities with their own reasonable rules provided that the distinctions they make have some rationale behind them."

All too often, disputes over CC&Rs wind up in court, some taking years to work their way through the legal system while they rack up fees for the attorneys who specialize in handling them.

A recent California Department of Real Estate survey found that more than 40% of homeowners association board members reported they had been threatened with lawsuits during the previous year.

Experts hope that number will be reduced because of a new law that requires two parties involved in a legal dispute in a homeowners association to try to resolve the conflict through non-binding mediation or arbitration before they file a lawsuit.

Alternative dispute resolution--a process that is cheaper and faster than a court filing--gets the two sides to sit down with an impartial third party and work out a solution to the problem.

If alternative dispute resolution is not tried before the parties come into court, a judge can award attorneys fees against the party that would not cooperate.

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