Members Breaching CC&Rs

We recently moved into an area covered by "PCRs" (Protective Conditions and Restrictions) in the suburbs of San Diego County. We read and understood them prior to purchasing our home. We have 4+ acres.

New neighbors moved in next door on a 7 acre parcel and are now putting in chickens, including an ugly chicken coop, and have additional plans which also go against the PCRs.

During a luncheon we brought up the issue to several members, including one of the board members, whom all agreed the PCRs are out of date and a few chickens won't hurt anybody.

It's my belief that, since no amendments to the PCRs have ever been recorded they are still valid and stand as is. It should also be the duty of each board member to uphold and defend/support the PCRs as is, regardless of their antiquity.

Needless to say we don't want the chickens and according to the PCRs, no structure shall be built without the approval of the Architectural Committee. Obviously this structure is also in violation.

Since the members of the committee did not take us seriously what is our recourse (send a letter requesting action to the board, file something in court, etc.) and how soon does the breacher need to respond?

Thanks,

Jeff,

One of the interim steps would be to hire an attorney to send a letter on your behalf requesting that the board deep six the chickens and the coop.

A letter from an attorney has no more legal weight than a letter from you, but it tends to get people's attention, especially if it cites authorities such as statutes and/or case law. Typically such a letter would be sent to the association in-care-of its statutory agent, who may also be the association's legal counsel. If that is the case, the association's lawyer may get involved at an early stage and advise the board to either follow the current declaration or seek to amend it.

Such a letter may cost you a thousand dollars or more, but it is small change compared to what it will cost if you have to sue. There was a recent story in the news feed on this forum about an Arizona woman who spent $90,000 to successfully compel her association to separate the various funds as required in their CC&R's. My point is that threatening legal action is far less expensive than actually filing a lawsuit.

you have a contract

in your opinion it is being violated

you are an adult

take appropriate action



ps. god forbid a neighbor desires a simple down to earth lifestyle ~ you have HOW MANY ACRES ?

Ralph,

Yes they would. However, an entity (Association, Developer, member, etc.) must initiate legal action to bring the issue before the court. The entity is not required (as indicated by the word "may") to bring such action but, if they chose to, they could.

Tim

Thank you ... this is actually Ralph's wife, and I watch the site more than he. I'm trying desperately to help out. He's the President and has heart issues and this all might be too much for him.

Our community I expect is like most HOA communities. One former BOD painted his home a color that is not approved. It's not a bad color but it's ticked off a number of people since it does not really go in the neighborhood. People are threatening to paint their home weird colors if this doesn't get sorted out. You can imagine the pressure that's being applied to Ralph. The CC&Rs are clear and only an approved color is acceptable. But I'm left wondering if indeed a court would rule to have it repainted when the color is not that bad. The HO or Ho as Ralph would say, is stubborn and refuses to repaint and of course he never had it approved. Any suggestions? We've sent 2 letters threatening to go to court but the HO doesn't budge. The CC&Rs don't allow for a fine in this situation.

Did the letters come from the Association or from the Attorney?

If it only came from the Association, then the owner may be thinking that the Association simply won't go through with a legal case. Since you have already threatened legal action, turn it over to the attorney and have them write a warning letter to the individual (something along the lines of I have been retained by the Assocition in this matter, blah, blah, blah, if the issue isn't resolved by mm/dd/yyyy I may have no other option then to seek a legal injunction.


Future reference, do not ever threaten something you don't have intention of following through with. This is because, if you don't follow through your threats will be considered meaningless and what you are saying will likely be ignored.


No. However, the Association still has to work on bringing the violation into compliance until the CC&Rs are changed.

Since it typically takes 2/3 of the membership (or more) to amend the CC&Rs, unless there is a huge support to accept the color, I wouldn't count on this happening.

Now, we had a similar issue. Through the Associations attorney, we entered into a binding agreement that the house would be returned to the original colors by mm/dd/yyyy (average length before repainting was needed) or prior to the property being sold, which ever came first.

If you use the solution we did, make sure that you have an attorney draw up the agreement and that the paperwork is signed and witnessed. I say this because you would be entering into a contract with the individual and, if you need to take the issue to court, a properly written and executed contract will be needed and will likely have the judge rule in your favor.

Sally, you are correct.

Have you tried changing the CC&Rs? It is typically extremely difficult and there is no guarantee that 2/3 or more of the membership would agree to the change.

What some may see as wasted money, others may see as enforcement of the existing regulations.

The other options (if you don't use the compromise) would be:

1) Spend even more funds to seek an injunction to force the house is repainted.

2) Don't enforce and deal with the outrage and possible other similar violations from the membership (which the OP has stated is already happening).

3) Delay the action, hope an amendment is adopted by the membership and deal with the after affects of it passing or not passing later (which of course is similar to option 2 and will likely have the same consequences identified in option 2).

What other options would you suggest be considered?

It depends on the language in the applicable State statutes and the governing documents.

In VA, if the issue went to court, the winning party can ask the court to award reasonable attorney fees.

Some governing documents include that costs of enforcement are considered an assessment to the member.