Neighborhood Rules Clashing With Freedom of Choice

Homeowners’ associations and the rules that they create for property owners have been growing exponentially. The number of these associations has more than tripled over the last decade in California to number 150,000. With the growth of associations has come an onslaught of covenants, conditions and restrictions--better known as CC&Rs;, and with these, of course, have come plenty of disputes between neighbors.

Parviz and Pouran Banayan have watched part of their Valley view disappear because of growing leaves and branches next door. They asked their neighbors to trim the greenery, but the neighbors liked keeping their privacy and shade.

The Banayans decided to take their neighbors to court, along with the local homeowners’ association. In papers filed with the Superior Court in Los Angeles, the Banayans claim that their neighbors have been violating CC&Rs; that limit hedges to about six feet. The neighbors contend, however, that the leaves are from trees and not hedges, so the CC&Rs; don’t apply.

Pouran Banayan is also arguing that she suffers from claustrophobia that necessitates being “in a spacious environment” with unobstructed views of the Valley. According to a letter that Parviz Banayan wrote to his homeowner’s association: “Since this deprivation, my wife’s condition has grown increasingly worse, and her visit to the doctor has increased significantly. This has not only caused our family physical pain, but emotional catastrophe.”

A declaration of CC&Rs; is recorded with every sale of a property that is within the purview of a homeowners’ association.

Covenants, conditions and restrictions each have a slightly different legal significance, but they are all recorded to help to maintain the character of local communities and condo complexes. Basically all condos and many newly built single-family homes are part of homeowners’ associations. Some communities have CC&Rs; that limit the color and style of a home’s exterior. There are often CC&Rs; limiting outdoor antennas, basketball hoops, open garage doors, fencing and just about anything and everything else. Any person buying property today, is advised to first check out the CC&Rs.;

One reason there are more CC&Rs; now is that there are more gated communities than in past decades. Why? As the level of services from municipalities is getting poorer, some people want to exercise their own control on their surroundings.

As you can see, CC&Rs; have become a very serious matter:

Consider that in Seattle, one couple faced the threat of imprisonment and fines of up to $2,000 a day for painting their home a color that wasn’t called for in the association’s rules.

In Virginia, one association sought to prevent a homeowner from displaying an American flag because of the community’s restrictions against banners.

In Thousand Oaks, a condo owner was recently forced by a court to pay fines to her homeowners’ association and to repaint her patio in a color that was more agreeable to her neighbors.

And, several years ago a couple in Simi Valley faced off against their neighborhood association over a redwood fence that the couple erected around their yard. The litigants argued over just how to interpret the CC&Rs; and whether the redwood would have to be replaced with wrought iron. Eventually, the homeowners got to keep their fence, but not without a lengthy and expensive legal battle.

Michael Bak-Boychuk, attorney for the Banayans, said he regrets tying up the court’s time over a landscaping dispute. However, he said, it was “a case of fundamental property rights. We’re talking about the orderly conduct of society.”

All this orderliness may come as a surprise to many Angelenos who moved here to express their individuality.

“With CC&Rs; we were able to impose our sense of aesthetics on individual homeowners,” said attorney Lee Barker about a case in which he successfully represented a homeowners’ association in its effort to get one family to re-landscape their yard in Glendale. All of the yards in the neighborhood featured a green lawn with sprinklers. One neighbor, however, decided to landscape with a desert motif. The neighbor was charged with violating a CC&R; that calls for “proper” landscaping. The errant landscaper was finally forced to redo the lawn pursuant to a court order.

“Some association boards are on power trips and they begin to run the association as a Gestapo-like environment,” conceded Kathleen Daniels, executive director of the Greater L.A. Chapter of the Community Associations Institute. If someone breaks a rule, she said, they can be fined, sued or--in extreme examples--foreclosed on by their homeowners’ association.

Any member of an association and the association itself can demand that a particular homeowner cure any violation of any CC&R.; Similar to a reciprocal easement, the CC&Rs; shared by the Banayans and their neighbors even permitted every owner subject to the restrictions the right to enter their neighbor’s property and “summarily abate and remove” anything that offends the CC&Rs.;

Most courts would be reluctant to allow a neighbor to enforce this provision--you can just imagine the violence that would break out if one neighbor started to summarily cut down someone else’s trees or repaint someone else’s home another color.

All these CC&R; are “double-edged swords. There are pluses and minuses,” said Alan Kheel, real estate partner at Sherman Oaks law firm Reznik & Reznik, which represents the homeowners’ association being sued by Banayan. These CC&Rs; do keep residential developments orderly but sometimes, he said, residents just go too far in trying to control their neighbors.

Just how far CC&Rs; can intrude upon an individual’s rights is now a question pending before the California Supreme Court. California’s existing standard is that CC&Rs; are enforceable “unless unreasonable.” A California Court of Appeal in Nahrstedt vs. Lakeside Village Condominium Assn., recently ruled that CC&Rs; should be enforced only if they are the least burdensome way for an association to accomplish its goals. Now the issue awaits resolution--yet again--this time in the state’s Supreme Court.