Answering Your Most Pressing CC&R Questions
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.
Overview
Little did people know when they first got into homeownership that they would be flooded with a plethora of new acronyms to comprehend. Whether a dispute has arisen, or owners are about to participate in the conveyance of an HOA property, owners have likely developed a sudden interest in what are termed “declaration of covenants, conditions, and restrictions,” known as the CC&Rs.
To assist homeowners in finding the answers, they 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. However, 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 us get to the questions.
Are not the CC&Rs just like any other fine print?
Not exactly. Are some of the legalese just as trying to comb through as a standard software disclaimer? No doubt. However, ignorance of the CC&Rs will cause homeowners 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.
Is the interpretation of the CC&Rs in the eye of the beholder?
Like the speed limit! The rules dictating paint color, lawn maintenance, and the like apply like the 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 are not given a moment’s hesitation. Hopefully, those same folks live in planned communities without strict rules regarding home appearance.
Simply put, the CC&Rs are genuinely in the eye of the association’s board of directors, which luckily are democratically elected by all the member homeowners. The directors of an HOA have a fiduciary duty to their fellow homeowners, meaning that they must care for the finances of the community with the same diligence that they would apply to their own.
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. However, the use of CC&Rs for residential properties has a bit of an ugly history in America[1], and subsequently, federal law prohibits certain CC&Rs from being put into effect.
For example, 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, 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 the community.
Our readers may recall that under a rule that dictates American conflicts of law, the constitution is superior and will trump any statute in disagreement—the CC&Rs function in a similar manner within the framework of HOA documents. A conflict with a subsequently enacted rule and regulation will result in favor of the CC&Rs.
Moreover, like the constitutional/statute comparison, if there is a dispute among homeowners or board members as to if a new rule conflicts 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[2]. The Las Vegas Review-Journal compiled 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 homeowners are moving to a new home just miles away in the same city, their 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 the CC&Rs, it is worth spending a little time to ensure the covenants are as expected.
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.
