Your HOA’s governing documents are made up of not only the CC&Rs, but also your association’s bylaws, rules, and architectural guidelines. (Civ. Code, § 4150.) The CC&Rs, however, are the most important. An HOA’s CC&Rs are recorded with the county recorder’s office and they constitute the rulebook for you and your HOA, spelling out the rights and obligations that its members owe to the association, and vice versa. Your CC&Rs are, therefore, treated by law as a binding contract that addresses many very important issues, including: (i) the power and authority of the board of directors; (ii) what homeowners may do and not do with their properties; (iii) the association’s and homeowners’ mutual maintenance obligations; (iv) regular and special assessments; (v) lien rights and limitations; and (vi) the day-to-day management of the HOA. (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (2012) 55 Cal.4th 223.)

Even though your HOA’s board of directors enjoys many of the same powers and responsibilities as any corporation’s board, your HOA’s board is made up of volunteers who often have no experience running a business, and certainly no experience with the Davis-Stirling Act. Problems arise when board members either fail to do their jobs, or they act arbitrarily, dishonestly, or capriciously. Typical CC&R violations by HOAs include things like:

• failing to preserve, maintain, or repair the association’s common areas;
• failing to address another owner’s nuisance behavior;
• failing to enforce the HOA’s governing documents, especially when such failure is negatively affecting the rights of another HOA member;
• failing to properly manage or account for the HOA’s finances;
• failing to follow the election requirements contained in the Davis-Stirling Act; and
• harassing certain members or treating some HOA members differently than others.

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HOAs must abide by the same antidiscrimination and antiharassment laws/regulations that all businesses and associations do. This means that HOAs are not permitted to violate the Fair Employment and Housing Act, the Americans with Disability Act (but only as to the common areas), the Fair Housing Act, the Unruh Civil Rights Act, and most importantly, the Davis-Stirling Act. These laws, and others, of course, not only prohibit discrimination and harassment on the basis of race, gender, sexual orientation, religion, disability, etc., but they also require HOAs to make reasonable accommodations to people with disabilities.

Many older HOAs had overtly discriminatory racial quotas in their CC&Rs. And while most of those CC&Rs have since been updated to remove such language, that does not mean that HOAs don’t regularly violate antidiscrimination laws. Many HOAs still engage in conduct that violate rights of its members and residents by, for example:

• refusing to permit a disabled resident from building a ramp (violates reasonable accommodation regulations; see Civ. Code, § 4760);
• prohibiting a resident from displaying a political banner on the resident’s property (violates Civ. Code, § 4710);
• refusing outright to permit a resident from having a service or comfort animal (violates reasonable accommodation requirements; might also violate other statutes, such as Civ. Code, § 4715);
• barring a resident from operating a daycare center in their home (Health & Safety Code § 1597.40);
• barring domestic partners from enjoying membership rights (Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824; and
• controlling occupancy by redefining the term “family” from its legal definition (City of Chula Vista v. Pagard (1981) 115 Cal.App.3d 785).

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For the vast majority of people who live in communities governed by an HOA, they live in close proximity to other people. In short, most people have neighbors. “Neighbor disputes” do, therefore, form the basis of many disputes between homeowners and their HOAs (and neighbors). Some of the more common claims that give rise to liability against a neighbor, and in many cases the HOA as well, occur when your neighbor is guilty of:

• building an unnecessarily high fence right next to your property line—i.e., a spite fence (Civ. Code, § 841.4);
• allowing branches or leaves from their trees to either cause damage to, or land on, your property (see Bonde v. Bishop (1952) 112 Cal.App. 2d 1);
• allowing roots from their trees to damage your property;
• trespassing onto your property—either directly by walking onto your property, or indirectly, such as by allowing water to spread onto, or under, your property (Cassinos v. Union Oil Co. (1993) 14 Cal.App.4th 1770, 1778);
• participating in illegal activities (e.g., drug dealing, non-permitted activities, etc.) (Civ. Code, §3479); or
• causing excessive noise—or for that matter, engaging in any other activities that interfere with your reasonable use and quiet enjoyment of your property (Adams v. MHC Colony Park, L.P. (2014) 224 Cal.App.4th 601, 610; Monks v. City of Rancho Palos Verdes (2008) 167 Cal.App.4th 263, 302-303).

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Simply put, your HOA’s common areas refer to areas that are owned by the HOA (rather than by any particular member(s) of the HOA). (Civ. Code, §4095.) While many HOAs have in common certain typical kinds of common areas, such as greenbelts/landscaping, sidewalks/walkways, swimming pools, and tennis courts, the other types of common areas you’re likely to see in an HOA have more to do with the type of association you joined. For example, in typical stacked structure communities (e.g., condominiums and townhomes), where the HOAs typically own everything but the air space in the individual units, the common areas you tend to find include things like roofs, hallways and staircases, parking lots/carports, HVAC systems, buildings, and plumbing/electrical. In communities consisting of single-family homes and/or planned unit developments (PUDs), on the other hand, you’ll often find streets, private gates, clubhouses, golf courses, equestrian facilities, and perimeter walls.

Regardless, because an association’s common areas are considered amenities by the members, and because they are often very expensive to construct and maintain, frequent common area-related disputes between homeowners and their HOAs arise regarding things like an HOAs:

• failing to make necessary repairs to the common areas;
• failing to reasonably maintain the common areas;
• neglecting a member’s damage to or destruction of the common areas;
• neglecting to take action against a member who has taken exclusive control over a portion of a common area;
• facilitating the transfer of some portion of the common area to a member without membership approval; or
• allowing the destruction of a portion of the common area.

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The Davis-Stirling Act imposes on your HOA a duty to enforce the CC&Rs in a manner that is not arbitrary or capricious, as well as by “procedures which are uniformly applied.” (Liebler v. Point Loma Tennis Club (1995) 40 Cal.App.4th 1600, 1609 citing Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, 383.) In other words, HOAs cannot show preferential treatment.

Unfortunately, human nature being what it is, homeowners frequently find that the board members of their HOAs “serve” because they enjoy the power that being on the board gives them, or they like to tell people what to do. These people are the ones who treat their HOAs like their own personal fiefdoms, often granting themselves and their friends privileges that they deny to other members. Such selective enforcement is illegal.

You may have a claim against your HOA for selective enforcement if your HOA:

• allows a board member to enjoy a perk or privilege denied to other similarly situated members;
• denies your application for an improvement to your home after having already approved applications from other similarly situated members;
• strictly enforces certain rules against you while ignoring similar violations of other members; or
• arbitrarily enforces certain rules while ignoring others.

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In simple terms, negligence is the failure to act reasonably in a given situation. If your HOA and/or neighbor cause damage to you or your property as a result of unreasonable conduct on their part(s), you may file a claim for negligence.

For example, you may have a strong negligence claim against your HOA/neighbor in any of the following types of situations:

• your neighbor changes the grading on his or her property (with or without permission from the HOA) causing water to flow onto your property that in turn causes leaking and property damage;
• your HOA fails to reasonably maintain the common areas, resulting in expensive replacements and repairs; or
• you report a roof leak in your condominium building that the HOA either ignores or delays before taking action, causing damage to your property (see White v. Cox (1971) 17 Cal.App.3d 824, 895).

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