Permitting Owners To Violate a Community Associations CC&Rs Is Beyond The Board of Directors Authority

HOA HOA Board of Directors


            In the Ekstrom v. Marquesa at Monarch Beach Homeowners Association (“Marquesa”) case, the California Court of Appeal repeats its previous admonition that a Board of Directors cannot permit owners to do what the CC&Rs expressly prohibit.

            At Marquesa, the CC&Rs state that any tree on a lot whose height exceeds the roofline of the house on the same lot, and obstructs another owner’s view, must be trimmed back to the height of the house. The Board of Directors, which believed the aesthetic value of palm trees was more beneficial to the community than preserving views, refused to force any owner of a palm tree that was blocking another owner’s view to cut it back or remove it, even though this was contrary to the advice of legal counsel. Finally, an owner whose view was blocked by a palm tree taller than the house, filed a lawsuit to compel the Association to enforce the CC&R provision restricting tree height.

            The Court held that the Board of Directors had no authority to ignore and refuse to enforce the CC&R provision regarding tree height. (NOTE: This holding may conflict with other decisions recognizing the Board of Directors has some degree of discretion in deciding whether to enforce a CC&R provision. Accordingly, in light of these apparently conflicting holdings, such Board decisions must be well-thought out.) The Board, in its defense, claimed its decision was made in good faith, and in the best interest of the Association, and because of that, the Court should “defer” to the Board’s decision.  (The Board tried to invoke the “judicial deference” rule adopted by the California Supreme Court in Lamden v. La Jolla Shores. The judicial deference rule provides that courts will “defer” Boards of Directors’ decisions when they are made in good faith, in the best interest of the Association, and within the Board’s authority.) The Court declared the judicial deference rule inapplicable in this case because the Board acted beyond its authority.

            The Board also tried to get around the CC&R restriction by adopting a very narrow definition of “view” in order to find only a minimal number of view obstructions. The Court saw through this maneuver.  In response, the Court itself defined “view” as “a view of the ocean or neighboring golf course visible in any direction from anywhere on a homeowner’s lot, inside or outside one’s house.”  It defined “obstruct” as “to block from sight or be in the way even partially and thus even one palm frond could block some portion of the view.” The Court admonished the Board for manipulating definitions in order to further its own purposes.

            To summarize, a Board of Directors does not have authority to permit owners to violate the CC&Rs, at least when that violation infringes upon the rights of another resident. Further, a Board is not permitted to interpret the CC&Rs in a manner that is inconsistent with the plain meaning of that document. The remedy is to amend the CC&Rs.  If amendment is not or cannot be accomplished, the Board of Directors may only interpret and enforce the CC&Rs consistent with its plain meaning.  Put in a different context, the Board of Directors does not have authority to grant variances to owners from complying with the CC&Rs, unless the CC&Rs clearly provide for such authority.

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