Answering Your Most Pressing Homeowners’ Association CC&R Questions
Little did you know when you first got into home ownership that your brain would be flooded with a plethora of new acronyms to comprehend. Whether a dispute has arisen, or you are about to participate in the conveyance of a property that is part of a homeowners' association, it is likely you have a now developed a sudden interest in what are termed “covenants, conditions, and restrictions,” commonly known as the CC&Rs. To assist you in finding the answers you are looking for, we have compiled the most pressing questions of homeowners.
Before we start, generally, the CC&Rs of a homeowners' association dictate what areas of the community are considered common areas, as well as establishing the rules for how member homeowners may enjoy their property. The purpose of the covenants is to protect and preserve the property values and enhance the living experience of the community members. It is important to note that the CC&Rs are just part of the whole of the suite of the community documents, of which we have also addressed.
One last point. Because homeowners' associations are private entities completing private transactions, much of the documentation is not available to the public. Yet, most states require that a community’s CC&Rs be recorded in the resident's county in order for the covenants to be enforceable.
With that background out of the way, let’s get to the questions.
Aren’t CC&Rs just like the fine print you click past every day?
Not exactly. Is some of the legalese just as trying to comb through as your typical software disclaimer? No doubt. But dare I say that ignorance of your CC&Rs will cause you significantly more distress. As we have previously discussed, American law has supported covenants on real property for hundreds of years, even if they have only applied to homeowners' associations in this most recent era. When an individual takes the title of a property subject to recorded covenants, the new homeowner is contractually obligated to abide by the covenants or rules of the homeowners' associations.
Isn’t an interpretation of CC&Rs in the eye of the beholder?
Like the speed limit! Rules dictating paint color, lawn maintenance and the like apply like your general residential speed limit—a basic framework for folks to abide by with enforcement only in the most egregious violations. For many folks, paint colors and length of grass are insignificant issues that aren’t given a moment’s hesitation. And hopefully, those same folks live in planned communities without strict rules regarding home appearance. To put it succinctly, CC&Rs are truly in the eye of the association's board of directors, which luckily are democratically elected by all the member homeowners.
The directors of a homeowners' association have what is called a fiduciary duty to their fellow homeowners, meanings that they must care for the finances of the community with the same diligence that they would apply to their own property. We have previously explored this fiduciary duty, so it is sufficient to state here that the board of directors will most likely strictly construe all CC&Rs because that is what the law often requires of them. So no, not like the speed limit at all.
Is a new homeowner stuck with displeasing the CC&Rs?
Let’s assume the best and presume that our new homeowner read through the association's covenants with all necessary due diligence, including a prohibition against amplified music after 9 p.m. A few months after the purchase, our homeowner falls in love with the world’s greatest guitar player, making such a prohibition a major drag. CC&Rs are not anywhere as difficult to amend as a constitution or a statute. Dependent upon the specified process, our homeowner could run to be a director of the board and/or persuade his fellow members to vote to change the rules.
So, an HOA board may draft any CC&Rs properly promulgated through the board?
Within reason, pretty much. Yet, the use of CC&Rs for residential properties has a bit of an ugly history in America, and subsequently, federal law prohibits certain CC&Rs from being put into effect. The ugliest of these CC&Rs were put into effect in the 1960s as a means to prevent people of color from buying certain properties and living in certain neighborhoods. If CC&Rs like these are currently on the books, (it is unlikely, but possible if the community is older), such rules are unenforceable and illegal under federal and state law. Some CC&Rs will contain a clause, as often seen in California, declaring that any restriction violating state or federal housing law is void.
What if the board passes a new rule in conflict with the CC&Rs?
Remember from above that CC&Rs are just part of the totality of the community documentation. Newly enacted prohibitions, often more specific, are considered as rules and regulations of your community. You may recall that under a rule that dictates American conflicts of law, the constitution is superior and will trump any statute in disagreement. CC&Rs function in a similar manner within the framework of homeowners' association documents—any conflict with a subsequently enacted rule and regulation will be resolved in favor of the CC&Rs. And like the constitutional/statute comparison, if there is a dispute among homeowners or board members as to if a new rule is in conflict with existing CC&Rs, it is a judge that is called upon to settle the issue.
Yeah, but aren’t all CC&Rs the same?
A better question would be, are any two that are much alike. The Las Vegas Review-Journal complied a few of the quirkier CC&Rs that the paper found throughout the Valley that shows this variance. The odd rules they found include prohibitions against the homeowner drilling for oil on her property to building a dam to an express prohibition of parking an airplane.
Even if you are moving to a new home just miles away in the same city, your new homeowners' association could have been built by a different developer and may have CC&Rs drafted in a completely different manner. When it comes to CC&Rs of an association, it is never good to assume. Given the potential expense of a violation of your CC&Rs, it is worth spending a little time to ensure the covenants are as you expect them to be.
What happens when a member violates the CC&Rs?
The association's CC&Rs outline the board's power and authority to enforce the community rules. Typically, association boards are given the power to (1) impose fines against the offending homeowner, (2) restrict the owner's right to use the common areas or community amenities, (3) correct the violation themselves, or (4) file a lawsuit.
 To put it gently.
 This is facetious, but still.