Berding | Weil Community Association ALERT Newsletter
Legal News and Comments for Community Association Boards and Managers Issue #82 • November 2011
Case Law Updates
by Melissa Bauman Ward, Esq. and Matt J. Malone, Esq.
CC&R ARBITRATION PROVISIONS
Developer, having sold all units in condominium, lacks standing to enforce CC&R arbitration provision.
The Court of Appeal, Second District, affirmed a trial court’s denial of a developer’s motion to compel arbitration where a CC&R provision mandated such arbitration for a construction defect case. The Court noted that CC&Rs are equitable servitudes, not contracts. Further, equitable servitudes are generally unenforceable by one who no longer holds an interest in the land. Thus, because the developer had sold all of its interest in the project, it lacked standing to enforce the arbitration provision in the CC&Rs.
Promenade at Playa Vista Homeowners Association v. Western Pacific Housing, Inc. (2011) ___ Cal.Rptr.3d ___, 11 C.D.O.S. 13705, 2011 WL 5344311.
The issue of whether a developer can enforce an arbitration provision in an association’s CC&Rs is currently before the California Supreme Court in Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC, 187 Cal.App.4th 24, review granted November 10, 2010, S186149. Berding & Weil is co-counsel for both the Executive Council of Homeowners (ECHO) and the Consumer Attorneys of California (CAOC) as amici curiae in the Pinnacle case.
SOLAR ENERGY SYSTEMS
Strict compliance with internal architectural review procedures essential for successful enforcement.
The Court of Appeal, Second District upheld an Association's right to require removal of a solar energy system which was constructed without Association approval and in violation of the community's CC&Rs and Architectural Design Guidelines. The owners had applied to install a solar energy system on a steep slope and installed the system after the Architectural Control Committee denied their application. Because the existing CC&Rs and Design Guidelines were reasonable and compliant with California's solar energy statute and because the Association followed its own procedure in considering the owner's application, the court affirmed a jury verdict in favor of the Association.
Tesoro Del Valle Master Homeowners Association v. Griffin, et al. (2011 WL 5142962, unpublished).
PREMISES LIABILITY
Under “trivial defect” rule, homeowners association not liable for injuries resulting from owner’s fall caused by sidewalk separation.
The Court of Appeal, Second District applied that rule to find that a roughly 3/4” sidewalk separation was trivial and, accordingly, the homeowners association charged with maintaining the sidewalk was not liable for an owners’ injury when she tripped and fell. The Court noted that the fall occurred at noon on a sunny day, the sidewalk separation was not obscured and the owner admitted not seeing the separation because she “wasn’t looking at [it].”
Cadam v. Somerset Gardens Townhomes HOA et al. (2011 WL 5110249, unpublished).


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