Of the five governing documents of most associations – articles of incorporation, recorded map or plan, bylaws, operating rules and “CC&Rs – the last, covenants, conditions and restrictions, is arguably the most important. Here are eleven things you may not know about your CC&Rs.
1. Public documents
When filed with the County Recorder (aka, “recorded”) CC&Rs become a public document, and anyone can see a copy.
2. A contract binding all owners
Regardless of whether they read it, understood it, or received a full copy of it. Once recorded, the CC&Rs document becomes a “covenant running with the land,” meaning a contract binding all owners.
3. Ordinarily not reviewed by buyers until too late
Most buyers regard CC&Rs as boilerplate, to be reviewed eventually. Even though buyers do not sign it, it should be read as carefully as the purchase agreement.
4. Your contract, not just the association’s
CC&Rs place rights and responsibilities not only on the association, but on each member. If a neighbor violates the covenants, you have the same right to deal with the problem.
5. Often distributed in draft or unrecorded format
“Official” CC&Rs will have a recording number from the County Recorder on each page. Associations often mistakenly distribute unrecorded copies originally received from the developer. It is easy to obtain a copy of the official document.
6. Normally enforced by the courts, even if they seem unreasonable
The California Supreme Court ruled in 1994 that CC&Rs will be presumed enforceable, with some narrow exceptions (such as if they contradict a law).
7. Often not written with your HOA in mind
Original developer-supplied CC&Rs usually seem boilerplate and not tailored to your community. This is because the developer’s primary interest is to obtain approval from the Bureau of Real Estate quickly to begin selling the homes. Many developer attorneys submit pre-approved form CC&Rs to the BRE, which speeds processing of the application – but also results in a document which is often sparse and ill-fitting to the unique aspects of the specific community.
8. Although normally amended by vote of all members, can be amended in three circumstances by the board
To remove discriminatory language (Civil Code 4225(b) or developer access rights for construction or marketing (Section 4230(b), or to update CC&Rs statute number references to the new Civil Code numbers in effect since 2014 (Section 4235). Such amendments must be approved in an open meeting, and need to be recorded.
9. Sometimes called by other names
Such as “maintenance agreement” or “declaration of trust” or other such title. What is important is not the title but the fact it is recorded on all of the properties in the association.
10. Sometimes expiring
In past times, developer attorneys would draft CC&Rs with expiration dates. Modern CC&Rs either have no expiration date or automatically renew. Do not let your CC&Rs expire if they still have a set date – renew and then amend that out of the document!
11. The glue holding your community together
CC&Rs can seem intrusive at times, as they place limits on owner autonomy. These limits are necessary to avoid neighbors harming other neighbors and detracting from the community. When your neighbor paints their garage with purple zebra stripes, that is when you appreciate your CC&Rs.
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 Kelly@rodllp.com. Past columns at www.HOAHomefront.com. All rights reserved®.