Q: I wanted to know if you have any information in regard to the expiration of California CC&Rs. I’ve heard 20 years from the time of the recorded filing of the CC&Rs. I ask because I live in a subdivision development of homes that has no common areas but does have an HOA in which the developer transferred the CC&Rs to the HOA and homeowners. The CC&Rs don’t show up in the San Mateo county recorder system and I can only find a single change in the CC&Rs back in 1986. I need to confirm whether the HOA should have renewed and recorded the revitalization of the CC&Rs as they are over 30 years old. Any information would be appreciated. — O.M., S. San Francisco
A: In past years, real estate attorneys included expiration dates in CC&Rs because of the “rule against perpetuities,” an old legal rule that required a termination date. Although the passage of the Davis-Stirling Act in 1985 may have eliminated that concern, lawyers these days typically write CC&Rs with periodic automatic renewal so the HOA is covered in case a future court rules that CC&Rs still must have termination dates.
If CC&Rs expire the association no longer falls under the Davis-Stirling Act, which could be a horrible problem particularly for a condominium property. To reimpose expired CC&Rs, one would need 100% written consent not only of all the owners but also all the mortgage lenders – a very difficult task indeed. Older HOAs (1980s and earlier) should check their CC&Rs and ask members to vote to amend and include automatic renewal, to avoid the possible disaster of expired CC&Rs.
Q: I have a question regarding property ownership. Our small complex is a condominium, and we have free-standing houses each with a yard. Our condominium plan has a tract map with boundaries that include the unit with the front yards/patios along with a description that a unit consists of the dwelling, garage and private yard areas encompassed by the unit boundary line shown on the plan. This might be in conflict with other language in the CCRs. One owner is of the opinion that based on the tract map that this is his own private yard and he owns it. It is my opinion that this is a condominium and that he doesn’t own the land. However, it is exclusive use common area with input on the project by the HOA. Thank you for any direction you can provide.– R.A., Lawndale
A.: Some subdividers create condominiums in which the unit is not the typical airspace block “surrounded by the unfinished surfaces of floors, walls, and ceilings,” but in which the unit appears to be a piece of land. I call those “lot line condos,” which can provide subdividers a way around zoning setback and minimum-lot size requirements. Have an HOA attorney look at the CC&Rs and condominium plan to provide guidance on this. Also, just because the yard possibly is part of the unit does not mean the HOA has no say in how it is used or maintained – the CC&Rs normally would apply to the units and common area.
Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to Kelly@rodllp.com.
Source: Orange County Register