Buy a pet? Throw a party? If your deed’s restricted, maybe not

Question: I’m looking to move out of my present homeowners association and buy a townhouse, but salespeople keep telling me I should buy a detached condominium. Although they look like single-family homes, they have a homeowners association.

Every time I complain about my present association to my father, he tells me, “That’s what you get for buying a home with deed restrictions.” I’ve asked him to explain what a deed restriction is, but I still don’t quite understand it.

When I bought my house, the real estate broker did not use the term “deed restriction.” What is a deed restriction and how am I affected by it?

Answer: All homes in California residential common-interest developments have mandatory deed restrictions. These developments can include several different housing types. Detached homes are among them.

The burdens of living with deed restrictions are no different whether the home is detached, attached or on an acre of its own. All the laws applicable to common-interest developments apply, and there is no reason to believe that the type of the housing will reduce the problems inherent in such developments.

A restriction is defined in Civil Code Section 784 as “a limitation on, or provision affecting, the use of real property in a deed, declaration, or other instrument, whether in the form of a covenant, equitable servitude, condition subsequent, negative easement, or other form of restriction.”

This means conditions are imposed on one’s use of the interest actually owned, which is different from owning property without restrictions.

Many property rights enjoyed by other titleholders without restrictions are not available to those owning in deed-restricted projects. Under mandatory deed restrictions, owners are unable to control the consequences of higher costs of living. To the detriment of common-interest titleholders, a board of directors that may or may not consist of titleholders enforces restrictions.

Restrictions can be minor or major in scope and carry a variety of penalties enforceable by the board against the owner. These restraints can limit the owner’s ability to paint the house a color of his or her choosing, add a skylight or an extra room for a growing family or an elderly parent or make space to park one’s car. Limitations on pets, swimming pool usage, children’s access to common amenities, television antennae or satellite dish installation, piano practice or after-hours parties can all fall under the board’s control, not the titleholder’s.

Even the ability to repair one’s own home is out of the titleholder’s control. Should a board decide to procrastinate or delay in responding to an owner’s request for repairs, the damage can go uncorrected for as long it takes the board to decide it will or will not take action.

Because boards are advised to act in the best interest of the association and not that of the titleholders, an imbalance is created in areas of impartiality and personal freedoms. Restrictions can subvert any doctrine of fairness and individual rights by taking them away from an owner and statutorily giving them to a board.

Before purchasing any deed-restricted property, decide whether living in a common-interest development is worth accepting these types of limitations on lifestyle: having strangers make decisions regarding your quality of life; being a part of lawsuits with no way to opt out; being responsible for all association liabilities and higher costs connected to the development; and having no control over what all of this will cost, yet being responsible for the payment.

Stephen Glassman is a writer and an attorney in private practice specializing in corporate and business law. Donie Vanitzian, J.D., is a writer and arbitrator and manages commercial property. Both live in common-interest developments and have served on various association boards. They are the authors of “Villa Appalling! Destroying the Myth of Affordable Community Living” (Villa Appalling Publishing Inc., 2002). Please send questions to: P.O. Box 451278, Los Angeles, CA 90045 or e-mail your queries to: noexit@mindspring.com.