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Obeying rules doesn't mean yielding rights

October 12, 2008|Stephen Glassman and Donie Vanitzian | Special to The Times

Question: We're a common interest development of a couple of dozen town houses with street and alley parking in addition to private garages. Rather than stick to the parking issues, our homeowners association board circulates minutes and memos that include nebulous lectures about "rights." Mailings include the statement "When we join a common interest community we make a compromise. For the common welfare we agree to give up some of our individual rights to choose and act."

Throughout its memos, the board keeps referring to owners' "bad behavior" and promotes its convoluted reasoning for imposing ridiculous fines and penalties. The management company has been complicit in the board's endeavor to fine and penalize some of the owners. Board directors, their friends, guests and family can violate rules and park anywhere they want, including at the side and back of their units, without fear of reprisal.

Is the board's statement accurate? And can owners bring an action against the management company and certain board directors for interfering with owners' property rights and the business of the association?

Answer: Owners don't give up any of their individual rights or liberties to choose and act when they purchase in a common interest development. They merely agree to abide by provisions contained in that association's governing documents and recorded declaration of covenants, conditions and restrictions. Agreement to abide by the CC&Rs may make the exercise of one's rights difficult, if not impossible, but it doesn't require homeowners to give up any of them.

Unlike the CC&Rs, rules and regulations are not recorded, and their evenhanded and uniform enforcement as part of the association's governing documents should not be open to guessing. When an association passes a rule, it must be "reasonable" and notice must be given of what the new rule entails, including a detailed description of what constitutes a violation and how the rule will be enforced, such as fines or penalties. Those rules must be applied fairly and equally to all affected by them, including those who sit on the board, just as would the basic laws governing common interest developments in the Davis-Stirling Act, California Civil Code sections 1350-1378.

California Civil Code section 1354(b) gives the individual homeowner a right to enforce a governing document. Among the best ways to do this is to take pictures of the violators and use those photos as evidence to demand enforcement or as a defense when charged with an alleged violation. Because digital photos can be manipulated, use an instant or throwaway camera that date-stamps the images.

Review association books and records to compare the collections from violations by non-board members with those from board directors. This is not privileged information.

Titleholders may sue to enforce the rules. But most individual owners have neither the desire nor the money to sue their association, regardless of how they have been treated.

Owners are allowed to call meetings to revoke newly announced rules, provided they do it within 30 days after notification of the new rule or rule change (California Civil Code section 1357.140). The support of only 5% of the owners is required to call the meeting and a majority vote of those present is required to change or reverse the rule.

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Send questions to P.O. Box 11843, Marina del Rey, CA 90295, or e-mail noexit@mindspring.com.

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