Who do I sue - owner and/or tenant - for violating CCR&S??

Hello: I have an owner violating the CC&Rs by using the unit as a short term rental business. We plan on pursuing litigation as the fines are not working. Do I also name the tenants as part of the lawsuit, and sue them too?

I am in California.

Any thoughts?

As we would not be representing the HOA in court, seek advice only from a lawyer.

Does your HOA have a fining schedule? Is this defined in your CC&R's for short-term rentals? Are they on record at the courthouse reflecting this?

The tenants are not members. Only the owner is a member. Thus you could only "sue" the owner. However, check into other options outside of a lawsuit. Like restricting access to common area/amenities. Which means the renter may not be able to use them if the owner isn't allowed.

We had an owner play the ignorance card too but, living back ast, he probable was unaware that his tenet was renting out the master bedroom suite plus living area for a good sum. He did evict his tenant and withheld the fine amount from his tenant's deposits.

You don't need to have fine amount list in your CC&Rs, as Melissa states, but that $250 has to be listed somewhere. Sounds like your HOA may be too small to have any amenities to withdraw, but if you do AND your documents permit it, hold another hearing and withhold such privileges for a couple of months.

I'm not up to date on the eviction restrictions. Do they apply when tenants don't comply with the Owners' rules? Or are trashing the premises?

MarkW may be right, you may have to hire a attorney to help you handle this.

Curious about your need to rush this along. Are the short-timeers breaking other rules? Noise rules, for instance, or parking rules? If so, call the owners to hearing on these violations too and fine him.

Can you confirm that your community is not subject to California's Davis-Stirling statute?
Why can't you wait?

First, if there were no pandemic, you and your neighbors could only sue the landlord for violation of the covenants.

Second, this is a pandemic.

Third, determining when the eviction moratorium applies is somewhat complicated. For the sake of argument, let's assume the moratorium does apply in this case. For certain members of your community to threaten suit against the landlord for doing something the law does not allow him to do is unconscionable (in these unusual times). No, no and no. Stop now. If you do not, then what you all are facing is a lot more legal costs than usual. Even worse, judges and arbitrators are facing conditions never heard of before. I would never bet on your side prevailing. If I were the judge, I'd be steaming that you and your neighbors brought suit to evict someone (again, assuming the moratorium applies).

You may not understand about this pandemic. Others do.

Fourth if these tenants are violating the covenants via say noisiness or how they park their cars, go ahead and sue the owner for violation of the covenants.

If you can say what it is the tenants are doing that makes you want to go after them, then this might help people here give advice.

Have you contacted the city in which you reside and ask if they have a restriction on short-term rental. I had a case end of last year in which the city took care of the issue with one visit from their code enforcement department.

Davis-Stirling statute does not apply to those communities that have no common areas. You posted you have no common areas or other common amenities. Maybe I am missing something. Why is it you think your community is subject to Davis-Stirling?

Thank you for clarifying. Can you please confirm: Is the lease that the owner has with the tenant a long term lease that does not, by itself, violate the covenants?

In my opinion, and as others have noted, you only have recourse against the owners, not any of the tenants. But I think this is still a legally sticky situation. E.g. suppose the tenants (who are offering the home for short-term rental) derive significant income from renting short-term. But your group wants them to stop renting short term. Now the tenant meets one of the criteria for the eviction moratorium.

I think I am back to my earlier position: Your community can either wait until the moratorium is lifted, or it can spend a lot more than usual to deal with this situation.

Two cents.

Does your city have a restriction on short-term rentals. If they don't, reporting the owner will get you nowhere.

Doug

I would take Melissa's strong legal advice as she is an expert in California law, hell, all states law for that matter.

Actually some of us can by doing some research!

This is a statement from https://www.davis-stirling.com/HOME/Renter-Violations

" CC&Rs will sometimes have a broad statement that the document is binding upon "each member, tenant, resident, and occupant" and each has a duty to follow the association’s governing documents. If so, penalties may be levied against tenants as well as owners for rules violations."

The CC&Rs can be enforced directly on tenants, as long as the CC&Rs have that statement that they are binding on tenants.

The CC&Rs are a kind of contract with the tenant.

That said, it is usually easier and more common to fine the owner.

You also look here:

https://www.davis-stirling.com/HOME/Renter-Menu

CC&Rs are attached to the land so only owners are bound by them. Tenants are bound by their lease which is between them and the owner. So, you would sue the owners, not the tenants.

Has your board reached out to such web hosting sites and informed them that the property in question is in violation of said covenants? Airbnb for example is very proactive and will delist the rental.

Perhaps some of the other sites have a similar policy as does Airb&b.

Good idea, LetA.

But, perhaps there is a strategy, that while not likely to result in legal action, could involved the tenant in something they find distasteful or that might require them to pay for legal support - include them in the suit and see what happens?

You can't enforce standards on a tenant that apply to the owner of property. The property purchase established the legal agreement between the owner and the HOA.

Unless the tenant signed the same deal, leave them out of this. Likely, the HOA can win the case and the tenant be allowed to reside on-site until the lease runs out. The tenant rented an available unit. If anything, they're a victim.