By David C. Swedelson, Senior Partner and Joan Lewis-Heard, Senior Associate at SwedelsonGottlieb
It is a good day for the Bridgeport Community Association, a SwedelsonGottlieb client. Today escrow closed and this association was paid the sum of $147,375.65 for the attorney’s fees and costs the Association incurred to obtain the owners and their tenant’s compliance with the CC&Rs. For those of you that think that it cannot be done, read on. The Board and Management at this planned development association located in Valencia, California persevered and took the case through the trial court and appeal and recovered $147,375.65. And they did this because it was the right thing to do, despite all of the time, effort and money it cost the Association.
The case started in November of 2007. In March of 2010, the California Court of Appeal came down with its decision in Bridgeport Community Association v. Martin, et al. (unpublished) affirming the trial court’s granting of summary judgment in favor of the association. The Court of Appeal upheld a trial court ruling granting summary judgment against both the owners (the Petersons) and the occupiers/tenants (and holder of a power of attorney by the owner to deal with association matters, the Martins) of a home at the association.
The Martins and Petersons had made a number of unapproved lot modifications, including landscape removal, soil excavation, and added hardscape features such as pavers, an unapproved plywood gate, and unapproved orange plastic fencing. They had also begun certain improvements and then stopped the work, leaving unsightly dirt and what appeared to be concrete forms for a walkway, refusing to submit plans and complete the landscape, despite numerous requests to both the Owners and the occupants. And it was their failure to complete what they started and the fact that the neighbors had to look at the home in that condition that eventually got these owners and their tenants into trouble.
At the time the complaint was filed in November of 2007, there were several violations, including a pile of building materials in the driveway, a recreational vehicle stored on the driveway, and an orange construction fence around the property. By the time the Motion for Summary Judgment was heard, those offending items had been removed, however an unapproved built-in barbeque pit had been built and other unapproved changes had been made.
The owners in the Bridgeport lawsuit did not dispute that the violations existed, did not dispute that the property was subject to the CC&Rs nor did they dispute that the prohibitions existed. Instead, they argued that the association was not entitled to the remedy of injunctive relief, that the association did not comply with the dispute resolution procedures in the CC&Rs and that the Martins (the occupants), who were not owners of the property, were not subject to the CC&Rs. They argued that because the association did not follow its own standards and procedures, it was not entitled to a judgment against them.
The Court of Appeal in the Bridgeport case rejected the owners’ arguments because the association had provided notice of a hearing, held a hearing, and expressed its decision and insisted that plans for approval were necessary. Given all of the association’s attempts to resolve the matter, the Court found that the association had acted within its authority in seeking a court order compelling the owners to comply.
By the wording of the Court’s order, ordering the owners to comply with their obligations under the CC&Rs, remove unauthorized modifications until such time as they submit an appropriate and complete application and receive approval, the Court of Appeal held whether specific violations had been removed at the time the motion was granted was irrelevant, and it was proper to grant injunctive relief, since it was undisputed that the required plans had not been submitted and it was undisputed that the unapproved improvements were still planned.
The Court of Appeal also explained that the owners “could not be heard to complain about the form of relief ordered” due to their failure to submit to the plan submission and approval procedures under the CC&Rs.
The substantial attorney fee award in Bridgeport of nearly $90,000.00 (increased after the appeal and with interest, the total amount paid was $147,375.65) was upheld against both the Petersons (Owners) and the Martins (non owner occupiers) of the Lot on the grounds that the Martins held a power of attorney, had an agreement to deal with Bridgeport as to any issues concerning the property, and the governing documents defined tenants or occupants of homes at the Association as “Bound Parties” under the CC&Rs.
The Court of Appeal in the Bridgeport case explained that while the association must follow its rules, once it has given all of the necessary notices (unless a Temporary Restraining Order or Preliminary Injunction is sought), and has made the necessary determinations as to architectural matters, an association is within its rights to seek a court order to enforce the CC&Rs against an owner or occupier that is in violation of the CC&Rs. The Court in Bridgeport stated that injunctive relief is a proper means of enforcing covenants and restrictions on land.
What conclusions can be reached by this Court decision? While this decision was unpublished and therefore cannot be cited a legal authority, it does show that the Court of Appeal will enforce an association’s right to enforce architectural violations, and award attorneys’ fees, against an owner and their tenant, as long as the proper notices and procedures are followed.
Firm attorneys David Swedelson and Joan Lewis-Heard handled the Bridgeport case. Have questions or comments regarding enforcing an association’s governing documents? Contact David Swedelson via email at firstname.lastname@example.org or Joan Lewis-Heard via email at email@example.com.