When an association discovers that an owner has made substantial alterations or modifications to their home that were not approved (often after the work has been done and a neighbor complains), we often hear board members or community association managers suggest that a judge is not going to make the homeowner remove an extensive modification of a home just because that modification violates the Association’s Governing Documents. While that is certainly a consideration that a court must make, we received a report (in the Daily Journal legal newspaper) that one judge did the right thing and ruled in favor of the Association under these circumstances.
The Clearlake Riviera HOA sued Robert Cramer, an owner of a home within the association, for violating height restrictions set forth in the association’s CC&Rs. The Association alleged (and evidence apparently established) that Cramer was aware of and repeatedly warned about the height violations, but intentionally disregarded them in constructing his home.
Cramer alleged that the height restrictions were vague, ambiguous, or otherwise unenforceable; alternatively, he argued that Clearlake Rivera was estopped (a legal term meaning: to halt, bar or prevent) from enforcing the Association’s Governing Documents because it had either waived them as to Cramer or misled him to his detriment during the construction process.
At trial, it was reported that the facts were essentially undisputed, that the Cramer home was more than nine (9) feet higher than permitted under the Association’s Governing Documents. It was also undisputed that it would cost many hundreds of thousands of dollars to lower the height of the home and abate the violation.
The court ruled in favor of the Association and ruled that Cramer knowingly violated the height restrictions and that the violation must be abated irrespective of the costs involved.
When an association comes to realize that a homeowner is constructing or modifying their home in violation of the association’s governing documents, this case shows that it is important that the association take immediate action. First, community associations should monitor work being done by homeowners to ensure that it is in compliance with the governing documents. When it is determined, as in this case, that the home may be too high, the homeowner should be immediately notified of the alleged violation and requested to halt construction so that measurements or other investigation can be undertaken.
If the homeowner refuses to stop construction, then it would be better for the association to take immediate legal action rather than waiting until the house is completed. While the judge in the Clearlake Rivera case made the appropriate ruling, not all judges will exercise the same power or authority. Further, it may not be so easy to establish that the homeowner knowingly violated the association’s governing documents (which apparently was a consideration for the judge in the Clearlake Rivera case).
Stopping a homeowner from moving forward with their construction before it has been completed will typically achieve the appropriate result. An investigation can be undertaken, and if the home is in violation of the association’s governing documents, the homeowner will be prohibited from proceeding further with the construction until the home is modified.