equitable servitudes

Hi All

Ok I am back. Our president is now telling me that because of this term equitable servitudes that is stated in our CC&Rs that this gives our association the right to make rules that say if your particular unit does not have a balcony you do not have to share in the cost for paying for the repair of all the other units that do have a balcony, so that gives the association the right to now say that everything that is exterior is the homeowners responsibility and the association is only responsible for paint and roof repair. Anybody think that this is right? We have many owners that are on fixed incomes and our association dues are 275.00 month. Many owners have had to pay large amounts of money to repair the outside of their own unit with regards to dryrot damage, termite issues and other repairs that come up since this is a 50 year old complex. Any feed back would be appreciated. By the way this is in California. I am so frustrated

Cabo

Cabo... whoa, for a minute there I thought you referring to marriage and the rules of engagement, when you started off with "equitable SERVITUDES." (smile)

OK, the legal definition of "equitable servitudes," is...

"An equitable servitude is a term used in the law of real property to describe a nonpossessory interest in land that operates much like a covenant running with the land. It is a covenant that equity will enforce against the successors of the burdened land who have notice of the covenant.

Equitable servitudes must be created by a writing, unless it is a negative equitable servitude which may be implied from a common scheme for the development of a residential subdivision, so long as landowners have notice of the agreement. Implied negative servitudes, however, are not recognized in some states, including Massachusetts and California.

A successor of the promisor is bound if the covenanting parties intended that the servitude be enforceable by and against assignees, the successor of the promisor has actual, inquiry, or record notice of the servitude, and the covenant touches and concerns the land.

The benefit of an equitable servitude runs with the land, and thus is enforceable by the promisee's successors if the original parties so intended, and the servitude touches and concerns the benefited property.

A court will not enforce an equitable servitude if:

The person seeking enforcement is violating a similar restriction on his own land (unclean hands);
The benefited party acquiesced in a violation of the servitude by a burdened party (acquiescence);
The benefited party acted in such a way that would have a reasonable person to believe that the covenant was abandoned (estoppel);
The benefited party fails to bring suit against the violator within a reasonable time (laches);
The character of the neighborhood changes sufficiently, through changes in zoning or through non-enforcement of the equitable servitude in one part of the neighborhood (called an entering wedge). "

Cabo, from the above terms, what prompted this "change" or interpretation from the President?

From what I read of your post, President is stating that no balc lowered share, balc same share... and then somewhere that previous argument leads to... elimination of balconies as maintenance responsibility of the association.

What has been the "history" of maintenance/repair responsibility of the association? Have the now in dispute items been the association's responsibility up to poiint? Has there ever been a "special assessment issued to cover these or any additional (but related) expenditures/maintenances, etc?

LAST BUT THE MOST IMPORTANT ISSUE - notwithstanding that one line in the doc's the President is interpreting, what does your full doc's state with regards to division of responsibilities on interior, exterior of units under the deed, as filed.

Devil's advocate question here.. if balconies are the catalyst (logic) the President is using, what stops folks from either building or removing their decks, since the "new implication" is that owners are responsible and not associtio?

Also Cabo, most here might assume that your units are condo's... possibly townhouses - can you provide a little more information on the unit type/structure.

Hi Cabo

Sorry I don't have an answer to your question however, your CCR should really define how changes to are made.

I'm curious to know if the president has thought through how the HOA will enforce routine and consistence exterior maintenance? When left to the owners some are slower than others to repair. Also, some are less inclined to spend $$ on quality repairs etc. Will the HOA stop collecting dues for exterior maintenance all together?