Homeowners Associations and Urban Ag Law

Potential Protections Under Public Policy

California recently made a change to its common interest development law, which may be a hopeful sign for any homeowner hoping to install a garden. In 2006, Assembly Bill 1881 amended the Davis Stirling Act to prohibit homeowners’ associations from making rules that restrict a resident from putting low water-using plants in his/her yard (Cal. Civ. Code §1353.8, added by AB 1881 (2006).) While most vegetables will not be low water-using plants, the law shows the legislature’s willingness to stand up to powerful homeowners’ associations in the event of a shortage. If they enacted this law in response to a water shortage; chances are they would be amenable to a similar bill in the event of a food shortage.

The Sustainable Economies Law Center may soon seek to introduce the California Homegrown Food Act to prevent HOAs from blocking food cultivation activities.

Fortunately, courts will often refuse to enforce private covenants if they are found to be in conflict with public policy. For example, CA law provides that “mentally and physically handicapped persons are entitled to live in normal residential surroundings and should not be excluded therefrom because of their disability.” (Cal. Welf. & Inst. Code §5115.) The law goes on to provide that using a property to care for “six or fewer mentally disordered or otherwise handicapped persons is a residential use of such property for the purposes of zoning.” Thus, a restrictive covenant that bans such groups homes could be found to be contrary to public policy, and therefore unenforceable.

Currently, there is not such a clear statement by the CA legislature that growing food is a right or a public policy priority. However, in the event of a food crisis, public policy could change in a way that would remove all restrictions – both public and private – on backyard gardening.

Private Land Use Restrictions: The What’s, How’s, and Why’s About Living with CC&R’s and Home Owners Associations.

Regardless of what kind of neighborhood, development, or type of home you live in, there are probably Covenants, Conditions, and Restrictions (CC&R’s) that, legally define what you can or cannot do to or with your home and yard.

This section of the library is intended to give readers a basic understanding for how and why CC&R’s and Home Owners Associations (HOA’s) work, and explain options for when problems arise between homeowner and HOA.

The main source of information on this is American Jurisprudence, Second Edition, Covenants, Conditions, and Restrictions, Jeffrey J. Shampo, J.D III. COVENANTS RESTRICTING USE OF LAND; BUILDING RESTRICTIONS, G. By and Against Whom Enforceable (Citations Omitted)

IMPORTANT: This section is merely educational, and is in no way intended or meant to be legal advice of any kind. If you are having problems with your HOA consult your CC&R’s, state, county, and city laws, rules, codes, and ordinances. You may also wish to contact an attorney specializing in Real Property and HOA issues.

What are CC&R’S?

American Juris Prudence, 2nd Edition Defines CC&R’s as:

• Covenants which restrict the use of land may be characterized as rights in the nature of servitudes or easements. covenants are designed to enhance the value and marketability of property; they are intended to be binding conditions of mutual benefit to both the grantor and the grantee. Indeed, one of the purposes of restrictive covenants is to maintain or enhance the value of land by controlling the nature and use of lands subject to a covenant’s provisions.
• A “restrictive covenant” is defined as a private agreement, usually in a deed or lease, that restricts the use or occupancy of real property, especially by specifying lot sizes, building lines, architectural styles, and the uses to which the property may be put. 20 Am. Jur. 2d Covenants, Etc. § 148 (Citations Omitted)

Types Of Real Property Ownership Effected By CC&R’s: Common Interest Developments

These definitions are taken from the California Civil Code §1351. These are exemplary and just a guide. Be sure to check your state’s civil code for definitions.

(c) “Common interest development” means any of the following:

(1) A community apartment project.

(2) A condominium project.

(3) A planned development.

(4) A stock cooperative.

 (d) “Community apartment project” means a development in which an undivided interest in land is coupled with the right of exclusive occupancy of any apartment located thereon.

 (f) A “Condominium Project” means a development consisting of condominiums. A condominium consists of an undivided interest in common in a portion of real property coupled with a separate interest in space called a unit, the boundaries of which are described on a recorded final map, parcel map, or condominium plan in sufficient detail to locate all boundaries thereof. The area within these boundaries may be filled with air, earth, or water, or any combination thereof, and need not be physically attached to land except by easements for access and, if necessary, support. The description of the unit may refer to:

(1) boundaries described in the recorded final map, parcel map, or condominium plan,

(2) physical boundaries, either in existence, or to be constructed, such as walls, floors, and ceilings of a structure or any portion thereof,

(3) an entire structure containing one or more units, or

(4) any combination thereof.

The portion or portions of the real property held in undivided interest may be all of the real property, except for the separate interests, or may include a particular three-dimensional portion thereof, the boundaries of which are described on a recorded final map, parcel map, or condominium plan. The area within these boundaries may be filled with air, earth, or water, or any combination thereof, and need not be physically attached to land except by easements for access and, if necessary, support. An individual condominium within a condominium project may include, in addition, a separate interest in other portions of the real property.

(k) “Planned development” means a development (other than a community apartment project, a condominium project, or a stock cooperative) having either or both of the following features:

(1) The common area is owned either by an association or in common by the owners of the separate interests who possess appurtenant rights to the beneficial use and enjoyment of the common area.

(2) A power exists in the association to enforce an obligation of an owner of a separate interest with respect to the beneficial use and enjoyment of the common area by means of an assessment which may become a lien upon the separate interests in accordance with Section 1367 or 1367.1.

(m) “Stock cooperative” means a development in which a corporation is formed or availed of, primarily for the purpose of holding title to, either in fee simple or for a term of years, improved real property, and all or substantially all of the shareholders of the corporation receive a right of exclusive occupancy in a portion of the real property, title to which is held by the corporation. The owners’ interest in the corporation, whether evidenced by a share of stock, a certificate of membership, or otherwise, shall be deemed to be an interest in a common interest development and a real estate development for purposes of subdivision (f) of Section 25100 of the Corporations Code.  A “stock cooperative” includes a limited equity housing cooperative which is a stock cooperative that meets the criteria of  Section 817.

Local Laws & Modern Uniform Codes

Some states, like California with its Davis Stirling Act found in the Civil Code §1350 Et. Seq., have all these things codified.  Other States follow one or more Modern Uniform Code.  A simple on-line search using “common interest development STATE NAME” should get you exactly what you need.

Approximately half the states have adopted versions of certain uniform laws promulgated by the National Commissioners on Uniform State Laws that pertain to common interest developments.  Some of those are:

Uniform Condominium Act (UCA):

States:  AL, AZ, LA, ME, MO, NE, NH, NM, Pa, RI, TX, VA, WA

Uniform Planned Community Act (UPCA)

States:  PA

 Model Real Estate Cooperative Act (MRECA)

Uniform Law Commission

 Uniform Common Interest Ownership Acct (UCIOA)

 University of Pennsylvania Carey Law School

States: AL, CO, CT, MN, NV, WV, VT

Purpose of the UCIOA:

Set rules for the creation, alteration, and termination of a common interest communities; management and operation of common interest communities; protection of purchasers…; and an optional provision, the registration of common interest communities and supervision by a government agency.

The UCIOA rules work for most residential common interest communities without variation.

California has the Davis Stirling Common Interest Development Act, and CA will use case law from other states to decide issues raised under the Davis Stirling Act, as well as turn to the UCIOA for guidance.

Validity of CC&R’s

From 20 Am. Jur. 2d Covenants, Etc. § 164(Citations Omitted):

While the courts have manifested some disfavor of covenants restricting the use of property, they have generally sustained them where reasonable, clear, definite, not contrary to public policy or to law, and not in restraint of trade or for the purpose of creating a monopoly. Restrictions per se are not violative of the public good, inimical to public policy, or subversive of the public interests, and it has also been found that building restrictions have never been regarded as impolitic.

A restriction imposed on property conveyed may be invalid, however, if it contravenes some constitutional or statutory provision, or where it is of no benefit to anyone and its enforcement might seriously interfere with the proper development of the community; furthermore,  restrictions which amount to a prohibition of use of the property are void.

Subject to these limitations, the court will enforce restrictions to the same extent that it would lend judicial sanction to any other valid contractual relationship. So long as the beneficial enjoyment of the estate is not materially impaired and the public good and interests are not violated, such restrictions are valid.

Specifically, and in accordance with the above principles, the courts have sustained the validity of restrictions limiting buildings to residences, restrictions as to their minimum cost, restrictions against erecting or occupying buildings for business or public purposes, front line and side line restrictions, and restrictions against the erection of a fence or hedge.

Generally speaking, a restrictive covenant whereby the common grantor or developer reserves the power of consent as to the placing or use of buildings on lots in a subdivision, or as to and not arbitrary. The authority to approve or disapprove plans of proposed construction may also validly be reserved to a committee established by an instrument executed by the original owners of the building development which sets out the restrictions.

How Long do CC&R’s Last? 

From 20 Am. Jur. 2d Covenants, Etc. § 162 (Citations Omitted):

Generally, the duration of a restrictive covenant will be limited to such time as seems reasonable from the nature of the case. Accordingly, the restrictions will not be construed as extending for a longer period of time than the nature of the circumstances and the purpose of their imposition would indicate as reasonable for the duration of their enforcement without undue and inequitable prejudice to the property rights purchased and acquired by the original grantee and his or her successors in title, subject to the restrictive covenants.

Consistent with the general principle of strict construction of restrictive covenants, where there is substantial and reasonable doubt as to whether the restriction is perpetual or is of limited duration, the doubt will be construed against the one claiming perpetual restriction. Mere lapse of time is not a sufficient basis to justify the conclusion that restrictions are no longer enforceable, however, absent changed circumstances. A restriction in a deed limiting property to residential use, construed as a covenant running with the land, has been found not to run only for a reasonable length of time, but to run forever. In some jurisdictions, however, there are statutory time limits imposed on restrictions which are unlimited in time.

If the duration is specified and as thus fixed is applicable, such words as “at any time,” “ever,” “never,” and “forever” appearing in the restrictions must give way to the particular specification of their duration. Where each deed conveying lots in a development contains a restrictive covenant against use of the property for other than residential purposes, but provides that such restriction should apply only for a limited period from the date of the conveyance, the mutuality of the covenants among the lots owners expires at the end of such period after the conveyance of the first lot, and thereafter it is not enforceable by one lot owner against another. Where a filed plat recites the existence of a restriction without   specifying any limitation upon its duration, but deeds executed by the grantor do specify a  limitation, the period specified in the deeds will control.

A covenant personal to an individual is terminated by such individual’s death, or by such individual’s ceasing to have an interest in the property, his or her use of which is benefited by the restriction.

Where Do I Find CC&R’s?

From 20 Am. Jur. 2d Covenants, Etc. § 161( Citations Omitted):

A deed and the plat which includes the property granted must be read together, and whatever appears on the plat is to be considered as a part of the deed. The effect of indicating restrictions upon a plat of the tract to create binding restrictions upon lot owners depends upon the facts in the case, though, in general, a developer can create covenants in favor of all landowners by clearly including restrictions in an accurate plat of the development that it properly records. The mere filing of a plat containing restrictive covenants does not subject the land to the restrictions of the covenants so long as the title to the property remains in the subdivider, but upon a severance of title by the grant of one or more lots according to the plat and by reference thereto, the restriction then springs into existence and becomes binding as between the subdivider and his or her purchasers and as between such purchasers.

A mere general reference in a deed to a plat must yield to specific provisions in the deed dealing with building-line restrictions, even if the plat shows a building line in a number of feet different from that expressed in the deed.

How Are CC&Rs Created? 

CC&R’s Created by Plan of Development or Improvement 

From 20 Am. Jur. 2d Covenants, Etc. § 157 (Citations Omitted):

One of the most common forms of imposing building restrictions is by the establishment of a general building plan of improvement or development covering a tract divided into a number of lots. The most complete way to accomplish such a plan is by a reciprocal covenant whereby the grantor covenants to insert like covenants in all deeds out of the common development.

Other ways of establishing such a plan may consist of the grantor’s selling the lots upon representations to the individual purchasers that like covenants will be inserted in the grantor’s deeds to others, for the common benefit, or the grantor’s pursuing a course of conduct indicating a neighborhood scheme, leading the several purchasers to assume its adoption and the adherence to it by such conduct.

The conveyance of several lots or tracts by deeds incorporating building restrictions indicates a purpose to adopt a general building plan, especially where a grantee of lots conveys one to one person and later a contiguous lot to another, incorporating in each deed the building restrictions under which he or she holds title. However, conveyance in this manner is generally not, of itself, sufficient to create such a plan.

The most common test of the existence of a general building or neighborhood scheme is an intent that the protection of the restrictive agreements inure to the benefit of the purchasers of the lots in the tract. Such an intent is said to arise from representations as to the restriction, made for the purpose of inducing the purchasers of the several lots to pay higher prices because of the restriction. Mere intent on the part of the grantor to establish a general scheme for the development and improvement of property does not govern, but the intent must be mutual. The intention to impose a general plan of development on a subdivision must be determined as of the time the subdivision is platted and lots are first sold therein, and the mere fact that purchasers, in improving their respective lots, have conformed to an old restrictive covenant in the chain of title, not a part of a neighborhood scheme, will not in itself raise such a scheme.

The common grantor need not have a multitude of lots in order to bring into operation the principle of a building plan; such a scheme may be established with two or more lots.

Enforcing CC&Rs

The information in this section, while somewhat universal, is specific to California.  It is meant to be educational and exemplary.   Please check the laws of your state and/ or consult a legal professional near you.

From Definitions.  Miller and Starr California Real Estate 3D, Harry D. Miller and Marvin B. Starr, Chapter 25B. Common Interest Developments, Revised 2007, by Edmund L. Regalia and Karen R. Turk (Citations Omitted):

“Articles of Incorporation” means the document creating corporate existence, upon filing, and containing statutorily required provisions, including, among others, business       purpose and name and address of the corporation’s initial agent for service of process. The articles must be signed by the initial directors or incorporators.

“Association” (statutorily referred to as a “community association”) means a nonprofit corporation or unincorporated association created for the purpose of managing a common interest development. Regardless of whether incorporated, unless the governing documents       provide otherwise, an association has the powers of a Nonprofit Mutual Benefit Corporation,       except an unincorporated association may not use the corporate seal or issue membership certificates.

“Bylaws” are part of the core governing documents of a common interest development. Generally, bylaws pertain to an association’s internal governance. Unlike the Declaration, bylaws are typically not recorded and are not enforceable as equitable servitudes.

“Common area” means the entire common interest development except the separate interests. The estate in the common area may be a fee, a life estate, an estate for years, or any combination of the foregoing. However, the common area for a planned development (defined below) may consist of mutual or reciprocal easement rights appurtenant to the  separate interests.

“Declarant” means the person or group of persons designated in the declaration as declarant, or if no declarant is designated, the person or group of persons who sign the original declaration or who succeed to special rights, preferences, or privileges designated in the declaration as belonging to the signator of the original declaration.

“Declaration” is also commonly referred to as “declaration of covenants, conditions and restrictions,” “declaration of restrictions,” or “CC&Rs.” The Declaration, which is recorded, is   one of the required governing documents of a common interest development.

“Exclusive use common area” means a portion of the common areas designated by the declaration for the exclusive use of one or more, but fewer than all, of the owners of the separate interests and which is or will be appurtenant to the separate interest or interests.

“Governing documents” means the declaration and any other documents, such as bylaws, operating rules of the association, articles of incorporation, or articles of association, which govern the operation of the common interest development or association.

“Member” is an owner of a separate interest (and related fractional common area interest) in a common interest development, who becomes a member of the association by virtue of such ownership.

“Nonprofit mutual benefit corporation.” While homeowners associations do not have to be  incorporated, most of them are incorporated as Nonprofit Mutual Benefit Corporations. Regardless of whether an association is incorporated, unless the governing documents provide otherwise, it has the powers of a nonprofit mutual benefit corporation, with some exceptions.

“Operating rules,” while not required, are very common and supplement the core governing documents. An operating rule is defined as a “regulation adopted by the board of directors of the association that applies generally to the management and operation of the common interest development or the conduct of the business and affairs of the association.”

Homeowners Associations (HOAs) 

Enforcement of CC&R’s in General 

From 20 Am. Jur. 2d Covenants, Etc. § 241(Citations Omitted):

The issue of who may enforce a restrictive covenant must be resolved on the facts of the particular case in which the issue arises, and individual cases are useful as precedent primarily for such general principles as they recognize and declare.

Broadly speaking, a suit for equitable enforcement of a restrictive covenant is maintainable only by one for whose benefit the covenant is intended, and is not enforceable by one who has no right or interest in the land for the benefit of which the restriction has been imposed.

The general theory behind the right to enforce restrictive covenants is that the covenants must have been made with or for the benefit of the one seeking to enforce them, and in such cases, the action of a court is not limited by rules of legal liability and does not depend upon legal privity of estate, or require that the parties invoking the aid of the court should come in under the covenant if they are otherwise interested.

Persons entitled to the benefit of building restrictions may enforce one or more of them without enforcing others, especially where permitting previous violations does not evidence       an abandonment of the general plan, or the violations are trivial or remote from the plaintiff’s land or differ widely in character from the violations sought to be restrained.

HOA Duties

From 15B Am. Jur. 2d Condominiums, Etc. § 52(Citations Omitted):

In some states a condominium board of managers has a fiduciary duty to the unit owners, and a failure to act in a manner reasonably related to the exercise of that duty results in liability for the board and also for its individual members. The officers and members of a condominium association must fulfill the fiduciary duties owed to the unit owners with reasonable care, diligence, good faith, and judgment. A condominium board’s proper exercise of its fiduciary duty requires strict compliance with the condominium declaration and bylaws.

However, the duties owed by a condominium association and the developer to the unit owners may be limited to those duties included in the bylaws and condominium act, making the common law duty of care inapplicable. Although there is authority to the contrary, the failure of a homeowners’ association to take appropriate action to enforce restrictive covenants may subject it to liability. With respect to common areas under its exclusive control, in some states a condominium association has the same duties as a landlord and thus an association has a duty not only to the unit owners and their tenants, but also to those who are on the land with their consent and who will inevitably be expected to use common areas such as the parking lot, and the duty to maintain the safety of common areas applies not only to physical conditions on the land but also to dangerous activities on the land.

An association may also undertake a duty to the unit owners, such as by undertaking to manage insurance proceeds on behalf of the unit owners pursuant to authority granted in the declaration of condominium after the units were damaged by a hurricane, so the condominium association assumed a duty In other instances, a condominium association has been held to owe no general fiduciary duty to its members. A condominium association would not be deemed to be analogous to a landlord for the purpose of     determining whether a duty of ordinary care was owed to unit owners.

In certain situations a condominium association has been found not to owe a duty to an individual unit owner, such as where an owner was assaulted by an intruder who had entered through a window, as the association owed no duty to provide bars on the windows of a unit, since the owners could have installed bars at their own modest expense, and the owners chose not to follow a procedure under which bars would have been provided by the association for all condominium owners upon affirmative vote of the owners. In another specific case it was not the duty of a condominium association and developer, as managers of a condominium, to protect unit owners from the negligence of an individual unit owner, whose unattended charcoal grill was the source of a fire that destroyed condominiums, absent any allegation that the association or developer had notice that any unit owners were   being negligent in the use of grills. Likewise, although an association may have a duty to use care to control its property, there was no special relation between the guest of a tenant of a condominium unit owner and the condominium association, or between the association and a person who shot the guest, that would give the association the responsibility to control the shooter.

Enforcement by HOA  

From 20 Am. Jur. 2d Covenants, Etc. § 243 (Citations Omitted):

When a home owners’ association seeks to enforce the provisions of its covenants, conditions, and restrictions to compel an act by one of its member owners, it is incumbent upon it to show that it has followed its own standards and procedures prior to pursuing such a remedy, that those procedures are fair and reasonable, and that its substantive decision has been made in good faith, and is reasonable, not arbitrary or capricious. The criteria for testing the reasonableness of an exercise of such a power are whether the reason for withholding approval is rationally related to the protection, preservation, or proper operation of the property and the purposes of the association as set forth in its governing instruments, and whether the power has been exercised in a fair and nondiscriminatory manner. Furthermore, an association of property owners which does not own any property in a development does not have the right to enforce restrictive covenants in deeds to owners of lots in the development where the developer has granted the right of enforcement to owners of lots in the development but has not authorized the association to enforce the restrictions as an agent of the lot owners.

Enforcing  Restrictions

The information in this section, while somewhat universal, is specific to California.  It is meant to be educational and exemplary.   Please check your CC&R’s and HOA documents for the procedures for enforcing restrictions and  the laws of your state, and/ or consult a legal professional near you.

The source for this subsection is: Miller and Starr California Real Estate 3D, Harry D. Miller and Marvin B. Starr, Chapter 25B. Common Interest Developments, Revised 2007, by Edmund L. Regalia and Karen R. Turk (Citations Omitted):  Also cited as 9 Cal. Real Est. § 25B:101 (3d ed.) or  MILCALRE § 25B:101 Page 1.

 § 25B:105. Enforcement of the restrictions—Requirement of alternative dispute resolution

An owner may compel the association to the enforce restrictions. The association and the governing body owe a fiduciary duty to the members of the association to enforce the Declaration in good faith and not act arbitrarily. Any owner who believes that the association is not discharging its duty to enforce the governing documents has an individual cause of action against the association to compel it to take the appropriate action for the enforcement of the documents and restrictions.

Alternative dispute resolution. Disputes between homeowners and an association relating to enforcing the governing documents are subject to alternative dispute resolution prior to commencement of a civil action. Initially, the association must engage in meet and confer steps enumerated by the governing documents or by statute as specified, where the association does not provide a fair, reasonable, and expeditious dispute resolution procedure.

In any action by the association or an owner for declaratory or injunctive relief related to the enforcement of the governing documents, the parties must attempt to resolve the dispute by either binding or nonbinding alternative dispute resolution such as mediation or arbitration.

Application of the procedure in an action relating to monetary penalties. The requirement for attempted alternative dispute resolution also applies to an action for injunction or declaratory relief in conjunction with a claim for monetary damages, other than association assessments, that does not exceed the jurisdictional limit for actions filed by natural persons in small claims court.

Request for arbitration or mediation. Either party may serve a Request for Resolution on the other party that describes the dispute, requests alternative dispute resolution by either mediation or arbitration, and notifies the other party that if it is not accepted within 30 days it is deemed rejected. The request must include a copy of the statute.

It is served by per-provide the party on whom the request is served with actual notice of the request.

Procedure binding or nonbinding. The selected procedure may be either binding or nonbinding at the option of the parties. If accepted, the alternative dispute resolution must be completed within 90 days, unless extended by mutual written stipulation of the parties. The costs of alternative dispute resolution are borne by the parties.

Procedure is confidential. Unless both parties consent, no testimony or admission in the alternative dispute resolution proceedings is admissible, and testimony or disclosure thereof cannot be compelled, in any subsequent civil action. Also, no document prepared during the course of the alternative dispute resolution process is admissible in evidence, and disclosure of such documents cannot be compelled, in any civil litigation.

Condition to a civil action. On filing of a civil action, the party filing the action must file with the initial pleading a certificate stating one or more of the following conditions is satisfied:

(1) alternative dispute resolution has been completed;

(2) a party did not accept the terms

offered for alternative dispute resolution; or

(3) preliminary injunctive relief is necessary.

Failure to file the certificate is grounds for a demurrer or motion to strike unless the court finds dismissal of the action would result in substantial prejudice to one of the parties. After a civil action has been filed, the parties may stipulate to referral of the matter to alternative dispute resolution and a stay of the civil action.

Attorney’s fees. In an action to enforce the governing documents the prevailing party may recover attorney’s fees, but the court may consider a party’s refusal to participate in alternative dispute resolution in determining the amount of the award.

Notice to members concerning dispute resolution policies and procedures. Each year the association must provide members with a summary of the portion of the Davis-Stirling Act pertaining to Alternative Dispute Resolution. The summary must specifically reference that Article of the Act, and also include a prescribed statement that failure follow the procedures could result in the loss of the right to sue, as well as a description of the association’s own internal dispute resolution process.

Litigation, Generally

The information in this section, while somewhat universal, is specific to Condominiums.  It is meant to be educational and exemplary for all types of Common Interest Developments and other types of real property ownership or possession governed by an HOA.  Please check your CC&R’s and HOA documents for the procedures for enforcing restrictions and  the laws of your state, and/ or consult a legal professional near you.

Actions by Unit Owners

From 15B Am. Jur. 2d Condominiums, Etc. § 55 (Citations Omitted):

A homeowner can sue a condominium association for damages and an injunction to compel the association to enforce the provisions of the declaration, and can sue directly to enforce the declaration. Likewise, a unit owner may sue a condominium association for failing to comply with a condominium’s bylaws, and injunctive relief is available to compel compliance with the condominium bylaw requiring a condominium board to make repairs to common areas.

An individual unit owner also has standing to bring a claim against another unit owner for a breach of the condominium bylaws, even though the unit owners agreed to allow the condominium board to sue on their behalf for certain matters, as the board’s right is not exclusive of the unit owners’ rights to pursue legal remedies for individual wrongs.

While a unit owner may bring an action to recover for his or her proportionate share of the damages to common property, any recovery does not constitute a separate, individual award of damages but, rather, is a single finding of damages to the collectively owned property and proportionate distribution based on the ownership of the undivided interest. However, in one case, unit owners had no basis for seeking damages for a trespass of the common area, as only the condominium trustees had a right to conduct litigation concerning the common areas and facilities.

Additionally, neighboring residents’ conduct in smoking cigarettes in their condominium was not so unreasonable in the circumstances as to support a private nuisance claim on the part of owners who complained of smoke seeping into their unit; the residents were not prohibited from smoking inside their condominium by any existing statute, condominium rule or bylaw.

A unit owner can maintain an action against a developer or general contractor for alleged breaches of the duties owed in common to all unit owners concerning construction defects in the common areas or elements, but only after the individual unit owner who brought the suit ensures that the interests of other unit owners are represented. Thus, it has been determined that individual unit owners had standing to bring a claim for flood damages against condominium sponsors, even though the purchase agreement generally required unit owners to have the board of managers pursue remedies, given that the sponsor specifically undertook the responsibility to prevent flooding in the survival agreement.

A first-time purchaser of a condominium unit may be entitled to proceed directly against the sponsors for the allegedly defective construction of the unit, even though the bylaws and offering plan stated that actions were to be brought by the board of managers on behalf of the individual owners, where the purchase agreement and offering plan granted the right to proceed directly against the sponsors.

Parties

From 20 Am. Jur. 2d Covenants, Etc. § 278 (Citations Omitted):

Generally, the party having the right to enforce a restrictive covenant, who may be either the covenantee or his or her successor in interest, that is, the subsequent owner of the land benefited, is the proper party plaintiff; and the several lot owners having a common interest in the enforcement of the restriction may join in a suit to enjoin its violation.

A personal covenant is not assignable at law, however, and only the immediate covenantee or his or her personal representative may sue on the personal covenant.

Statutes establishing generally applicable rules for the joinder of plaintiffs or defendants may control the determination of proper plaintiffs in cases involving restrictive covenants.

In order for an action involving a restrictive covenant to be maintained as a class action, the necessary prerequisites to a class action must be established.

The proper party defendant in an action involving a restrictive covenant is, of course, the person alleged to have violated the restrictive covenant, although the determination of necessary defendants may depend upon the facts of the specific case.

Pleading

From 20 Am. Jur. 2d Covenants, Etc. § 279 (Citations Omitted):

Generally speaking, in order to plead a good cause of action for the breach of a restrictive covenant, there must be allegations of fact which will tend to show that the covenant is in force at the time of the alleged violation, and also that it has been made for the plaintiff’s benefit.

Where the facts so warrant, a complaint in an action relating to a restrictive covenant may include counts for intentional or unintentional torts.

Observation:

In a proper case, amendment of a complaint will be permitted. Furthermore, amendment of an answer may be permitted where it appears from the facts that the defendants have attempted, but failed, to raise a potentially valid defense.

Evidence

From 20 Am. Jur. 2d Covenants, Etc. § 280 (Citations Omitted):

In an action to enforce a restrictive covenant, evidence of the intent of the parties with regard to the creation and extent of the restriction is limited to the instrument itself, unless the meaning of the language used is uncertain or ambiguous, in which case the surrounding circumstances may also be taken into consideration.

Where the language of a restrictive covenant is plain and unambiguous, therefore, oral evidence is inadmissible to vary or contradict such language.

Extrinsic evidence as to the purpose of restrictions is admissible, however, to find the intention of the parties as to a point not directly involved in and left in doubt by the instrument.

Furthermore, oral testimony is properly admissible on the question of whether it would be oppressive and inequitable to give a restrictive covenant effect or whether the covenant is arbitrary.

Evidence—Sufficiency of Proof

From 20 Am. Jur. 2d Covenants, Etc. § 282 (Citations Omitted):

If restrictions upon the use of property are to be enforced, the existence of the agreement to restrict must not be left to mere conjecture and inference, but must be proved as a substantial fact.

The view has been taken that where it is sought to impose or enforce such restrictions, a preponderance of evidence is not sufficient, but the existence and validity of the restrictions must be proved beyond a reasonable doubt, at least in the case of a restrictive covenant by implication.

However, it has also been found that restrictive covenants in deeds will be enforced against servient land only where their existence is established by clear and convincing proof by the owner of the dominant estate.  In any event, the mere adoption by a common grantor of the custom of exacting the same restrictions in the deeds to all portions of a tract has been considered insufficient evidence that a restrictive covenant has been entered into for the benefit of all such portions.

In order to enforce unrecorded restrictions against a purchaser of real property, landowners have been required to prove by clear and convincing evidence that, at the time of purchase, the purchaser has actual knowledge that such restrictions apply to his or her land.

Where a restrictive covenant is entered into pursuant to a general building plan for a subdivision, evidence of the existence of such a plan at the time the covenant is made is sufficient evidence of an intention to attach the benefit of the covenant to the remaining lots of the subdivider, but this rule does not apply as to restrictions shown in deeds to lots sold prior to any plan, since such evidence of restrictions alone would fail to show that the restrictions have been inserted with the intention to create a uniformly restricted subdivision at the time of the covenant; however, where the evidence tends to show uniform restrictions inserted in the sales of other lots, both before and after the date of the restricted deed in question, such evidence has been found sufficient to show an intention of the parties that the benefit will attach to all other lots of the promisee.

Litigation and Injunctive Relief

From 20 Am. Jur. 2d Covenants, Etc. § 262 (Citations Omitted):

Injunctive relief is available as a remedy against the breach of a restrictive covenant. This relief may be either a restraining injunction against the violation of the covenant, or, in the case of structures already erected, a mandatory injunction directing removal.

Moreover, a writ of injunction may be invoked to prevent prospective breaches or threatened violations of a restrictive covenant.

Observation:

It is not necessary to show that a remedy at law is inadequate when a party seeks to enjoin the breach of a restrictive covenant.

Effect of Violation by Complainant or Other Landowners

From 20 Am. Jur. 2d Covenants, Etc. § 264 (Citations Omitted):

Ordinarily, an owner of a lot in a tract who has violated the building restrictions cannot enforce them against others.

Minor violations, however, do not have this result, especially if they are wholly different from those with which the defendant is charged. The fact that one of a number of landowners joining in a suit to enforce a restriction does not, as a former violator of the restriction, come into court with clean hands, does not affect the right of other owners to seek enforcement of the restriction.

Moreover, a lot owner is not estopped to enforce restrictions because of violations of restrictions by other lot owners, where there is substantial value in the restriction to the one seeking to enforce the restrictions.

Necessity of Showing Damage

From 20 Am. Jur. 2d Covenants, Etc. § 265 (Citations Omitted):

As a general rule, a restrictive covenant may be enforced irrespective of the amount of damage which would result from the breach and even though there is no substantial monetary damage to the complainant by reason of the violation.

The right to enjoin the breach of restrictive covenants does not depend upon whether the covenantee will be damaged by the breach; the mere breach is sufficient ground for interference by injunction. Thus, for example, restrictive covenants as to the nature, location, or use of buildings will be enjoined even though no substantial damage is shown.

Likewise, a landowner in a subdivision seeking to enjoin a violation of a residential-only covenant need not show irreparable injury where there has been a substantial breach of the covenant.

Necessity of Showing Damage—Relative Hardship Caused by Enforcement 

From: 20 Am. Jur. 2d Covenants, Etc. § 266 (Citations Omitted):

If a party will be subject to great hardship or the consequences would be inequitable if a restrictive covenant is enforced, relief will be denied. This rule has been described as the “relative hardship” doctrine, under which a covenant will not be enforced if enforcement will harm one landowner without substantially benefiting another.

However, the doctrine of relative hardship does not call for the mere balancing of conveniences; hence, a mere disproportion between the harm to the defendant and the benefit to the plaintiff will not warrant a refusal of injunctive relief, where it is the sole reason offered by the defendant for such refusal, unless the disproportion is gross or of considerable magnitude.

In order to establish the hardship defense and thus avoid the remedy requested for violation of a restrictive covenant, therefore, the defendant must prove a level of hardship beyond inconvenience.

If the detriment to the owner seeking relief from restrictions is no more than use of his or her property in the same manner as other owners under the restrictions, it is not a detriment which will be relieved.

Mere pecuniary loss to the defendant, as the result of the enforcement of a restriction, will not prevent a court of equity from enforcing it; further, the fact that a large increment of value would result to the defendant’s property from the refusal to enforce a restrictive covenant in his or her chain of title is of slight consequence on the question of its enforcement.

Defenses:  The Effect of Laches; Statute of Limitations

From 20 Am. Jur. 2d Covenants, Etc. § 267 (Citations Omitted)(Emphasis Added):

The party seeking equitable relief for the violation of a restrictive covenant must not be guilty of laches. What acts, or failure to act, upon the part of the complainant will amount to such laches as will bar the right to relief must depend largely upon the facts of the particular case.

The defense of laches has been established where:

— the landowners in a planned community development fail to commence an enforcement action before the completion of unapproved construction as required by a restrictive covenant; they do not seek an injunction until four months after the erection of a light pole and lights on a tennis court.

— the plaintiffs delay their first suit to enjoin the operation of a trailer camp and sales of trailers in violation of a residential restriction for two years until the suit is dismissed for want of prosecution, and then wait four more years before bringing another suit, the defendants in the meantime having spent $4,500 in improving their property.

— the plaintiffs delay suit to enforce a single-family dwelling restriction for six years following the defendant’s remodeling of a house for use as a beauty shop.

 The defense of laches has been declared not established where

 — a home owner argues that a neighborhood restrictive covenant prohibiting home businesses precludes a neighbor from providing day-care services from her home, even though the homeowner knows of the neighbors’ home-remodeling activities for over two years before he files suit, where the neighbors’ original purpose of remodeling is to provide a room for their family, not commercial day care, and the homeowner brings an action one year and four months after informing his neighbor that her day-care service violates the covenant.

 — a residential-property owner timely complains about the use of neighboring property as a restaurant parking lot, contrary to the terms of a residential restrictive-use covenant; the neighboring property had been used as a parking lot for a T-shirt manufacturer for 20 years, but the residential-property owners complain when the T-shirt business is converted to a restaurant and the owner begins to improve the parking lot to accommodate restaurant patrons.

— plaintiff, after being informed that a garage is to be built in violation of a setback restriction, objects, even though the defendant offers to buy part of the plaintiff’s land, and the plaintiff has never consented to the building. Generally, mere delay or lapse of time in bringing suit does not in itself constitute laches.

Among the factors, in addition to delay, considered in determining whether laches exist are whether the relative harm in granting relief to the plaintiff is disproportionate to the benefit secured thereby and the defendant’s good faith, or lack of good faith, in connection with the violation of the covenant.

 There can be no laches where there is no knowledge of the wrong committed and no refusal to embrace the opportunity to ascertain the facts.

When knowledge of the violation is acquired, reasonably prompt action is ordinarily required.

 As a general rule, if the threatened violation is known, suit must be commenced before the persons in possession of the property have expended money or incurred liabilities in the erection of buildings or other structures on the premises. However, only a delay in bringing suit after knowledge of the breach of a restriction for a period which justifies the defendant in believing that the plaintiff has acquiesced warrants a refusal to grant relief against the violation. If objection to the erection in question is duly made, the failure to institute proceedings to prevent its actual construction before its completion will not preclude the complainant from seeking proper equitable relief.

 In some cases, a statute of limitations, and not laches, has been urged as a defense in a suit to enjoin the breach of a restrictive covenant. The question has been raised as to which statute of limitations would be applicable; thus, it has been found in such a suit, considering a restrictive covenant as a negative easement, that the applicable period of limitation is the period of prescription applicable to easements, and not the shorter period provided by the ordinary statute of limitations.

 Similarly, it has been found that a restrictive covenant, as a negative easement, constitutes a hereditament so as to bring an action to enjoin the breach thereof within the statute of limitations barring actions for the recovery of lands, tenements, and hereditaments unless instituted within a certain period of time, rather than within the statute prescribing a shorter period of limitations for contract actions.

Litigation and Contracts

From  20 Am. Jur. 2d Covenants, Etc. § 274 (Citations Omitted):

It has been said that an action for breach of a covenant is an action on a contract, that the ordinary remedy for the nonfulfillment of a covenant is that the delinquent party must respond in damages, and that the fact that other remedies may be available to the plaintiff does not preclude their resort to an action for damages.

Where equitable relief has for some reason been refused, the courts have often relegated complainants to their remedies at law.

Measure of damages

From 20 Am. Jur. 2d Covenants, Etc. § 275 (Citations Omitted):

A covenantee can recover only damages that are occasioned by the breach of those covenants; the usual measure of damages for the breach of a covenant is compensation for the actual loss suffered by reason of the breach.

 In a typical action for breach of a real-estate covenant, the measure of damages is the amount that will compensate the injured party for the loss that fulfillment of the contract could have prevented or the breach of it has entailed; the chief concern is to make the plaintiff whole and to secure to the plaintiff his or her rights under the contract.

 The measure of damages for violation of a restrictive covenant may be limited by the duration of the covenant at issue.

Observation:

State law may authorize the recovery of attorney’s fees in an action based on breach of a restrictive covenant.

 Cases:

Fact that restrictive covenants are contractual in nature does not necessarily mean that a homeowner is entitled to recover contract damages against a homeowners association in actions arising from covenants.

Litigation and Judgment

From 20 Am. Jur. 2d Covenants, Etc. § 284 (Citations Omitted):

 The judgment rendered in actions to enforce restrictive covenants obviously depends upon the form of the relief sought. Generally, concerning protective covenants, equity may fashion a remedy to effect justice suitable to the circumstances of the case.

Reminder:

An injunction against the violation of restrictive covenants, opposed on the ground that there has been such a change of conditions as to justify a refusal to enforce the covenants, but based upon the denial that there has been such a change, does not prevent the testing of the question at a subsequent time; accordingly, the doctrine of res judicata does not operate so as to prevent a reexamination of the question, where, in the interval, the facts have materially changed or new facts have occurred which may have altered the legal rights or relations of the litigants.

Other Resources

State and Local Laws

State Laws

Most state laws are on-line.  Laws governing issues regarding home owners associations are usually found in the state’s civil code.

Local Laws

Counties, cities, villages, townships and other municipal governing agencies may also have laws about home owners associations.  Some of these are on-line.

All of them should be accessible in the county law library or at local government offices.  Be sure to check for local laws as well as state laws.

County Law Library

Your local county law library will have everything you need, and access is free to all.  Most have free access to legal research data bases like West Law and Lexus Nexus.

Law libraries usually are not very busy, and law librarians are always willing to help, answer questions, and point you in the right direction.  Many law libraries are open Saturdays.

You probably won’t be able to check out too many things, so bring lots of quarters to make copies.

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