Taking Conformity Too Far
Question: I live in a condo at the beach. For the 26 years I’ve lived there, no one has ever moved because it is so nice; the only way to move in is if someone dies.
Each home is distinct in part because most of the owners are ardent gardeners.
As older residents die, younger owners have bought into the complex and are imposing stricter rules and regulations. They have also hired a management company without a vote from the owners. The company immediately gave all homeowners notice that we have to conform to a type of uniformity where all the homes “will look alike.”
The company said they are doing this “because it will increase the value of our property.” They said we must remove all of our potted plants. Homeowners are now officially banned from putting anything in individual patios that might be seen above the 4-foot patio wall, and can no longer place any flower boxes or plants on the patio ledges. They have also arranged to paint the entire complex within 60 days.
Before these younger owners bought in and took over the board positions, there was a pleasant and flexible atmosphere. Now we are “ordered to remove everything” and nothing is open to discussion. This has led to an extremely stressful situation that is affecting our lives. Is there anything we can do?
Answer: Your situation is typical of the ever-changing state of common interest developments and the boards of directors given legal authority to run them. Original owners, faced with the initial responsibilities of repair and maintenance, adopted a scheme that was open and representative of the distinctiveness of the homeowners, yet catered to the perceived homogeneity of the complex. Homeowners expressed their individuality while enjoying the benefits of the “community.” But circumstances and people change with the passage of time, and not all change is good.
Examine all the homeowner association governing documents of your development from the day you bought it. Those documents may limit your board’s authority to hire a management company unless it was approved by a vote of the homeowners. If hiring the management company requires additional expense, the increase in your association budget may exceed what is permitted by the Davis-Stirling Act without requiring a vote.
California Civil Code sections 1365 and 1366, part of the Davis-Stirling Act, outline procedures and requirements for assessment increases before increases can occur. Nearly overlooked in section 1363(g) is the reference to monetary penalties and fines and the requirements that must be met before such fines can be levied. Confirm that your board has met all of these requirements--if not, any fines may be invalid.
Assessments may still be the basis for a lien on your separate interest if not paid in a timely fashion, even if they are not valid. If the assessments are not valid and were used as the basis to put a lien on property, the owner may have a claim for damages, but by the time those damages are paid the real damage will have been done to the homeowners and the community in which you live.
In the 26 years of living in your common interest development, you have no doubt experienced increased property values. Just as the management company had nothing to do with property value increase before they were hired, they will have nothing to do with any potential increase afterward.
Contrary to what buyers and sellers may be led to believe, the cookie-cutter appearance of a neighborhood can actually lower property values. It is the individuality nurtured by you and the other homeowners that makes your complex appealing, thus raising the property values.
There is no credibility to the statement that a “uniform appearance” suddenly increases the value of your home or that tall patio plants decreases its value.
Every vote counts in a common interest development. Your management company is just another vendor that does not have the authority to rule your complex. Doing away with them may be simple. Rally homeowners who feel the new generation of board members has gone too far and vote in a new board.
Presenting and electing your own board nominees might allow you to rescind the measures about which you now complain. Once that happens, consider amending your covenants, conditions and restrictions to limit the extent to which rules and monetary fines can be imposed or which restrict homeowner individuality and personal freedoms.
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Stephen Glassman is a writer and an attorney specializing in corporate and business law. Donie Vanitzian, J.D., is a writer and arbitrator and manages commercial property. Send questions to: Common Interest Living, P.O. Box 451278, Los Angeles, CA 90045 or e-mail queries to [email protected].
