(originally published in July of 1997)

The courts have again been busy hearing cases which directly and indirectly involve homeowners associations.

I. Notice of Violations Cannot Be Recorded. A homeowner painted his house an “atrocious bright blue color”, as described by the Board president of an association, which apparently was not in keeping with the less radiant colors within the neighborhood. The Association’s CC&Rs provided that the Association may record a Notice of Violation/Non-Compliance for this type of violation. The offending homeowner discovered this Notice had been recorded against his property when refinancing, and filed a petition to remove the notice.

The Court of Appeal held that there was no law or provision allowing a party to record this type of document, even though the CC&Rs, which are considered a private “contract” between the parties, provided for recording such a document.

You may recall that a previous case, California Riviera Homeowners Assn. v. Sup. Court, held that such a notice could be recorded, however, this case was later depublished, meaning it is not valid authority. We will see whether this case survives the “grim depublication reaper”.

II. Members Objecting to Petition to Approve Amendment Are Not Entitled to Attorneys Fees.

A beach-front condominium association proposed an amendment to its CC&Rs to eliminate unequal voting, whereby each member who lived near the seawall in the project had greater voting power. The association obtained approval from over a majority of members, but could not quite obtain the 75% as required by the CC&Rs. The association filed a petition under Civil Code Section 1356 (aka Greenback petition) to have the amendment approved. Several “seawall” members, apparently quite happy with this voting arrangement, hired an attorney to oppose the petition.

After the petition was successfully defeated, the objectors asked for an award of attorneys fees. In the first published decision subsequent to the adoption of Civil Code Section 1356, the Court of Appeal denied the objecting members’ request, finding that the petition is not an “action”, upon which the prevailing party may be awarded fees, as it is not an adversarial proceeding. The Court stated that if it adopted a rule that the “prevailing party” of such petition was entitled to fees, and objecting members lost, the members would have to pay the association’s attorneys’ fees. The Court found that such a result was not intended, and would discourage comment by members in objecting to or opposing these petitions.

III. Liability for Crimes Occurring on Premises

The issue of whether an association has a duty to prevent criminal acts occurring within the project has been visited by the courts on several occasions. Associations have in the past been analogized to landlords, who have the duty to take reasonable steps to secure the common areas against foreseeable criminal acts of third parties. The primary area of exploration by the courts lately is the meaning of “foreseeable”.

In Pamela W. v. Millsom (1994), an assailant entered a condominium unit and raped the tenant. There, the question posed was whether the association had a duty to implement security measures that might have prevented the rape of a tenant by a stalker. The Court found that no duty to take security measures existed, absent any particular information that prior similar incidents of violent crimes had occurred on the premises. That court concluded this crime was not “foreseeable”.

In deciding the Pamela W. case, the Court relied on the case of Ann M. v. Pacific Plaza Shopping Center (1993), in which the plaintiff was raped when working at a store within a commercial shopping center. In that case, the court determined that the shopping center owner did not owe a duty to provide security guards unless a “high degree of foreseeability” exists with respect to the crime committed.

In Sharon P. v. Arman (June 1997), a plaintiff was raped in a commercial parking garage adjacent to the bank where she worked. The bank had been robbed nine times in the past six years. Several lights in the garage, including the one over plaintiff’s parking space were not working, darkened storage areas existed where someone could hide, and security cameras were not working.

The Court recognized that covered parking structures, whether underground or overground, present a special temptation and opportunity for criminal acts. The Court found a high degree of foreseeability existed as to this type of crime in the parking garage, and that although no prior similar acts had occurred, the garage owner had a duty to provide reasonable security measures to protect against foreseeable criminal acts. It further stated that depending on the total circumstances, such duty may or may not include security guards. The Court commented that as these structures are located on private property, and are not patrolled by the police, it “must be the responsibility of the owners/operators of commercial garages to make them reasonably safe for use by tenants and visitors.” Although associations are “residential” developments, these principles could be applied to underground or enclosed parking garages on private association property.

In summary, the rules establishing whether a duty will be imposed is going to depend on the particular facts, such as the nature of any prior crimes occurring on the premises. We suggest you consult our office if you have questions as to these types of matters.