Legal Question in Construction Law in California

Home Improvement HOA vs Home Owners

We are looking for court cases pertaining to building municipal codes (cc&r) vs. Home Owner Assoication rules and regulation: i.e. someone adding on to thier home.

We are trying to stop or at least make our next door neighbor adhere to the ''Specific Plan'' ,HOA rules that was adopted by our local city in the state of Califorina.

Asked on 7/02/01, 1:47 am

1 Answer from Attorneys

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Re: Home Improvement HOA vs Home Owners

First, you have mentioned three kinds of restrictions on homeowners:

(1) Municipal "Codes" or ordinances;

(2) Conditions, covenants and restrictions (CC&Rs); and

(3) Homeowner Association Rules and Regulations.

In order for someone to build or modify his home, he would have to comply with ALL (or at least avoid violating ANY) of these. The restrictions in one or another presumably do not conflict; they are cumulative and complementary.

The differences between them are basically that codes are law and are enforced by the public authority (e.g., the city) whereas the other two are generally private and contractual in nature and are enforced as contracts by affected individuals who have "standing" to sue.

There can be overlap, e.g. HOA rules could be adopted and made an ordinance by a city, in which case either the city or the HOA could act to enforce them. Also, ordinances can impose CC&Rs (or, at least, restrictions), and some HOA rules may have the effect of being CC&Rs.

The main difference between CC&Rs and HOA rules is that CC&Rs are semi-permanent whereas HOA rules can often be changed by action of the HOA.

Preventing a homeowner from violating a CC&R or an HOA rule would seem to call for a private suit by the HOA or any affected homeowner. The first analysis is whether the prospective plaintiff has standing to sue. Next, what form of relief to ask the court for--an injunction, money damages, or both, or something else.

If the city is the party that should be enforcing its own ordinance and fails to do so, you may not have standing to sue the homeowner, in which case you might have to sue the city to force it to comply with its own laws. I would avoid this route if there is any other possibility.

If there were a conflict between an ordinance on the one hand and a CC&R or an HOA rule on the other, the ordinance would usually prevail since it is a law whereas the others are private contracts, there is some limit on government's right to rewrite or overrule existing private agreements so one cannot be certain which would prevail.

You should seek a free consultation with a local real-estate attorney who can read the ordinance or HOA rule you think applies.

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Answered on 7/02/01, 4:19 pm

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