Do CC&Rs; Supersede Municipal Codes?

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QUESTION: We own a townhome in an association that allows pets. However, all pets must be on a leash when they are in the common area. Our cat is outside during the day and stays in our garage at night. We cannot bring the cat into our unit because it will fight with our other cat.

The board of directors sent us a complaint letter because our cat is in the common area without a leash. They are threatening to fine us.

We checked with the Los Angeles Police Department and were told that, under Section 53.06 of the municipal code, cats are not required to be on a leash. A representative from animal regulation also stated that cats are roaming animals and that there is no leash law for cats.

We informed the board of directors about the municipal code and they indicated that they would check further with local agencies. However, they still intend to fine us.

We do not want to file a lawsuit but the board is leaving us no choice. Do association rules supersede municipal code regarding the control of pets?

ANSWER: Community associations often have rules and regulations that go beyond the restrictions in the local codes. For example, architectural controls and paint-color restrictions are often far more stringent than city regulations.

Your association probably has the authority to enforce this pet restriction, especially if it appears in the declaration of covenants, conditions and restrictions (CC&Rs;). If you allow your cat to roam the neighborhood, other cat owners will be resentful. Cats can create a nuisance, especially in flower gardens and children's sandboxes. Perhaps the board has received complaints from other owners about your cat.

Any veterinarian will tell you that allowing a cat to roam is not a kindness. I urge you to keep your cat inside if you really care about its health and happiness. If your two cats fight when they are confined together, then put them in separate rooms. You are not allowed to disobey the rules just because your cats are incompatible.

This may seem like an important issue to you, but it is not an issue that should be litigated. Filing a lawsuit over this would be a waste of your time, money and energy.

Contrary to your statement, you do have a choice. You have chosen to live in a community association that has CC&Rs;, bylaws and rules. If you cannot comply with the legal documents of the association, then you should move somewhere else. I can tell you with certainty that if you decide to sue, you will want to move anyway by the time the lawsuit is resolved.

Can Non-Resident Owner Be on Board?

Q: Our homeowner association board has one director that does not live in the complex. His unit is rented to a tenant.

Is it proper for this non-resident owner to serve on the board of directors?

A: Yes, it is proper unless the governing documents of your association prohibit absentee owners from serving on the board. A non-resident owner has the same right to serve on the board as an owner who lives in the complex.

Read the association's declaration of covenants, conditions and restrictions (CC&Rs;) and bylaws. Usually, the qualifications for serving on the board will be in the bylaws.

I have seen some association's bylaws that preclude non-resident owners from serving on the board or serving as an officer, but this is not the way most bylaws are written.

Owners Have Extended Patios to Common Area

Q: Several owners in our homeowner association have extended their concrete patios and wood fencing beyond their own lots. The board members have approved these changes and some of the board members have extended their lots onto the common area also.

I believe that the board's action has given unfair advantage to certain owners. Complaints to the board have been ignored. What should we do?

A: The board of directors does not have the authority to allow certain individual owners to claim the common area that legally belongs to everyone.

The owners all pay the property taxes for the common area because the taxes are assessed to each of the owners according to their percentage of ownership. Now you are paying taxes on common area property that you cannot use and enjoy.

This complicated situation has many other issues relating to the board's conflict of interest, enhanced or decreased property values for the individual owners, maintenance responsibility and resale disclosure.

These are issues that should be discussed with an attorney if you want to take action to protect your rights. Consult an attorney who specializes in common interest developments and community association law.

How Can an Owner Coerce an Election?

Q: My homeowner association has not held an election for almost two years. The board president keeps making excuses. On a number of occasions she has said that the meeting will be held "next month" but then nothing happens. She has also stated that if no one will run for the board, there is no point in having an election. When should our annual meeting take place? Are the owners supposed to approve the annual budget? What can I do to cause the election to take place?

A: Read the association's governing documents. Usually the meeting requirements can be found in the bylaws. The annual meeting is often conducted on the approximate anniversary date of the association's first organizational meeting.

The election of directors is the primary purpose of the annual meeting. This is an important task because the board of directors has a lot of authority. One of the board's responsibilities is the setting of the annual budget. Unless the association's governing documents state otherwise, the owners do not vote on the annual budget. The budget would require a vote of the owners only when the board recommends a proposed increase of more than 20% over the previous year's budget.

I suggest that you write a letter to the board of directors asking when the annual meeting will be scheduled. Be sure to send a copy to each of the individual directors. If the board fails to act, 5% of the owners can petition the board to schedule a meeting. Read the bylaws and consult an attorney if you need further advice about compelling the board to hold the election.

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