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Covenants and Restrictions

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Yours, Mine and Ours

Sunday, April 17th, 2011

Concerning duties of the homeowner in a common interest subdivision.

NEWPORT BEACH, CA–Dover Village is a 38-unit condominium complex, governed by the aptly named Dover Village homeowner association (“HOA”).

The Dover Village condominiums

One unit here was owned by Patrick Jennison when, in July 2007, Patrick noticed seepage coming up through the floor. It seemed to be from a sewer line.

Patrick contacted the HOA, and its property management company sent a contractor to investigate.

The contractor figured the seepage came from sewer pipe installed by the builder in 1965, so he ripped up the flooring and jackhammered the concrete slab foundation.

Finding a burst pipe two feet beneath the slab, the contractor determined it had to be replaced. So the contractor jackhammered and dug some more, finally clearing a trench about 50 feet in length through Patrick’s living room and into the front yard.

Patrick's unit, center

After the pipe was replaced and the slab repaired, Patrick replaced carpeting and floor tiles and sent a bill to the HOA for $2,235.

The HOA refused to pay and, on advice of its attorney, the Board of Directors sent Patrick a letter demanding reimbursement for repair work to the tune of $15,453. The Board said the sewer pipe “exclusively serviced” Patrick’s condo, so was his to maintain and repair.

The HOA and Patrick headed to court, where the judge ruled that the sewer pipe is common area to be maintained by the HOA. The judge also awarded Patrick $16,490 for attorneys’ fees and costs. The HOA appealed.

On appeal, the HOA referred to its governing CC&Rs (conditions, covenants and restrictions) which distinguish “common areas” within the condo complex from “exclusive use common areas” servicing a single unit. Patios and garage areas are, for example, exclusive use common areas. It’s the duty of the condo owner to maintain his (or her) exclusive use common areas and, the HOA said, a unit’s sewer pipe should be treated no differently than its patio or garage.

Patrick answered saying the CC&Rs also state that “pipes” and “other utility installations” are not part of the condo unit, unless “located within the physical boundaries of the unit.” Since the pipe was beneath the slab, Patrick argued it’s in common area and a responsibility of the HOA.

The California Court of Appeal, Fourth District, Division 3, at Santa Ana

The Court of Appeal affirmed the trial court, agreeing with Patrick and holding the sewer pipe is “common area.”

Referring to the CC&Rs, and to California’s common interest subdivision statutes, the Court said sewer pipes are interconnected  with main and lateral lines throughout a condo complex and, therefore, cannot reasonably be called “‘fixtures’ of any particular unit.”

Likewise, the Court said sewer pipes are not comparable to patio and garage areas, because it’s not reasonable to believe “individual unit owners somehow control sewer pipes beyond the boundaries of their unit.”

Moral: A key to understanding this decision is knowing how condo units are legally created and described.

Unlike a plot of land, legally described by metes and bounds or by reference to a lot on a recorded survey map, condo units are described as airspace with a fixed location in relation to land as shown by the condominium plan. The boundaries of the condo unit are its floor, walls and ceiling. Everything outside the airspace is common area, or other condo units.

And how, you may ask, did this dink-dollar case make it to the Court of Appeal? Here’s the real poop: Patrick’s legal defense was paid by his homeowners insurance carrier. The risk of a slab leak is commonly covered by homeowners insurance in California, and Patrick’s insurer saw this as a case they had to win.

The case is Dover Village Association v. Jennison, 191 Cal.App.4th 123 (Cal. App. 2010).

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50 Monkeys

Sunday, April 25th, 2010

Reverter:  A gift of land recalls its purpose.

SANTA ANA, CA–J. E. “Ed” Prentice came to Orange County in the early days, when it was just a farm belt dotted with a few small towns and whistle-stops.

He had  been a teacher, lawyer, and sometimes farmer in his native Kansas when, in 1912, he and his wife Edith came west.

They settled in Santa Ana, the county seat, and Ed got into business trading mules and horses.  He owned a stable in town and folks called him “Judge.”  At home, he kept a pet monkey.

Judge Prentice, with monkeys

By the 1920s, Ed was busy buying orange groves and making farm loans from an office he occupied in the First National Bank Building.  He now had four pet monkeys.

Then came the depression.

It was 1931 and Ed, now 44, held a mortgage against the Melwood Estate on the outskirts of town.  Melwood was 19.23 acres with a sixteen room mansion, a producing orange grove, water plant and packing shed.  The owner was in dire straits, and the mortgage was in default.  Ed foreclosed and got the property for $12,600.

Ed and Edith, who were childless, moved in at Melwood with Ed’s monkeys.  There, they rode out the depression until 1940, when Edith died.  After that, Ed lived alone with a succession of servants who, tormented by monkeys, kept quitting.

By 1949, the Melwood grove was in decline and suffered from disease.  Ed got the idea to give some land to the city for a park.  The gift was accepted, and a deed was recorded conveying twelve acres to the City of Santa Ana, with “conditions.”

The deed conditions were that the land was to be used for a park only, to be named “Prentice Park,” and “at all times ample accommodations shall be provided for 50 monkeys.”  If the monkey population should fall below 50, the land would automatically revert to Ed or his heirs.

The Santa Ana Zoo at Prentice Park opened in 1952.  Ed continued to live next door, but he became irritated that city officials underfunded the park and it looked shoddy.  He called them “knuckleheads,” and grumbled that they should return the zoo to him so he could run it.

The Santa Ana Zoo at Prentice Park

Eventually Ed moved away, and in 1959 he died at age 81.

For more than 50 years all went well at the zoo.  Monkeys played and children came to ogle.  Then, in August 2008, the city got a letter from an attorney representing one Joseph Powell, a grand-nephew of J.E. Prentice.  The letter demanded proof that the zoo had 50 monkeys or, the letter said, “we plan to proceed with our rights under the grant deed to have the property revert back to Mr. Prentice’s heirs.”

It seems the cagey Mr. Powell had visited the zoo and counted monkeys.  There were only 49, he claimed, after the death of a 35-year-old silver langur named Geni.  Within months, the count dropped again with the death of a capuchin named Monty.

The City Council began to fret.  Healthy monkeys, to live in captivity with others of their endangered species, are hard to come by.  International rules have to be followed.

Maya, right, with baby clinging to her back

Then a wondrous thing happened.  The little monkeys rose to the legal challenge mounted by Powell, and a golden lion tamarin named Maya gave birth to twins.

In ensuing months, a pair of crested capuchins named Romeo and Juliet added another offspring, bringing the monkey population to 51.

And zoo officials aren’t sitting on their tails, either.  They announced they will build their collection of “bona fide” monkeys (no lemurs or gibbons) to at least 55.  Romeo and Juliet are, after all, on loan from Brazil.

Moral: The reverter clause is legally enforceable by the Prentice heirs (and who knows how many there are), so this monkey census is serious business.

The stakes are high.  The twelve acres in central Orange County are now worth millions.

It comes down to law; the law of the jungle.

The 1949 deed, with reverter

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Homeowner vs. Height Restriction

Monday, April 5th, 2010

The Riviera, overlooking Clear Lake

“You were serious about that?”

KELSEYVILLE, CA–The Clear Lake Riviera Community Association governs a common interest development of 2,810 lots overlooking Clear Lake, in northern California.  About half the lots are improved with homes.

The Riviera CC&Rs provide for an Architectural Control and Planning Committee to ensure that new construction is harmonious with the surroundings and adjacent homes.  Sometime prior to 1995 the architectural committee issued building guidelines stating, “maximum roof height must not exceed seventeen (17) feet above street level or control point for that lot.”

In early 2005 Mr. and Mrs. Robert Cramer bought a lot in Riviera and drew plans for a home.  They submitted the plans to the architectural committee and got approval with a note, “structure height not to exceed 17 feet from control point of lot.”  Since it was a sloping lot, the control point (marked on the plans) was the center of the lot.

Mr. Cramer acted as his own general contractor.  By mid-summer 2005 Cramer completed grading and installed forms for his foundation.  But a neighbor complained, so members of the architectural committee met with Cramer and told him if he chose to build where the forms were placed the house would be too high.  Later, Cramer did not recall a warning.

Cramer poured his foundation, and in ensuing months the committee sent two notices that the construction appeared to depart from approved plans.  Again they warned the house could be too high.

But Cramer forged ahead and, yes, the completed house varied from the plans.  It was bigger and exceeded the height restriction by nine feet.  Worse, it blocked lake views enjoyed by two neighbors.

When the Cramers asked for a variance to approve the house as built, the committee faced a hard decision.  The variance was denied.

So it happened that the homeowners association sued the Cramers to bring the house into compliance.

At trial, Cramer denied being warned by the committee but admitted he had never attempted to measure the height as work on his house progressed.  He said he’d relied on his grading contractor to set the proper elevation, but the contractor denied it.

Cramer argued he should not be forced to tear down the house, and an expert witness said it could cost $200,000 to save it.  The expert said to preserve the structure Cramer would have to cut it in half, remove it from the foundation, re-grade the lot, and move it back on a new foundation.

Neighbors, on the other hand, were adamant saying the house blocked their views and diminished their property values.

The trial court ruled in favor of the association, and ordered the house be removed or made compliant.  The Cramers appealed.

Lake County Courthouse

On appeal, Cramer disputed authority of the architectural committee saying the height restriction was not properly created.  He also argued that fixing the violation would be costly and create hardship for his family.  At most, he said, he should have to pay money damages to a few neighbors.

This was a tough case.  Court-ordered injunctions and forced removal of improvements are rare.

But the court of appeals upheld the trial court decision, finding the association has consistently enforced the height restriction since 1995, and Cramer blatantly disregarded their advice.  Nine feet, the court agreed, is no “trivial” violation.

Moral:  Homeowner associations are a force to be reckoned with.  They represent the community you bought into, and their decisions may be legally enforced.

The case is reported as Clear Lake Riviera Community Association v. Robert Cramer, 182 Cal.App.4th 459, 105 Cal.Rptr.3d 815 (2010).

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