Condo CC&Rs re: no renting

[usernamelittlebit]

What is the name of your state? What is the name of your state?California
I live in a condo complex with 4 units. Our CC&Rs states: Units are not to be leased or rented. Units are to be Owner occupied. I have lived here for 23 year and I have handled the escrows demands for all of the current owner. Buyers never read the CC&R before they close escrow and the buyers agent never informs their client of the HOA of this restriction. I submit a document called ACKNOWLEDGEMENT OF RECEIPT OF XXXXXX HOA GENERAL POLICIES, PROCEDURES AND REGULATIONS to to the buyers agent. The buyers agent never returns the signed document back, ever, so I submit the same document to escrow and I don't provide escrow the HOA's final demands until I receive the document back with the buyers signature on it.

The HOA GPP&R covers parking, assessments, including the following section of of our CC&Rs:
ARTICLE 2, SECTION 2.1 of XXXXX CC&Rs states:
The units shall be occupied and used by the respective Owners only for private single family residential purposes. Units are not to be leased or rented. Units are to be owner occupied.
Signature page includes the following:
An agreement to purchase is assessed as an agreement to follow all rules and policies, as well as the governing documents. This is a legal and binding contracts by anyone who chooses to purchase in XXXXX.
Please sign below to confirm that you have received XXXXX HOA GENERAL POLICIES, PROCEDURES AND REGULATIONS, and that you have read and understood them, and agrees to abide by ALL provisions therein.

Final demand will not be provided to escrow and therefore escrow cannot close until XXXXX HOA receives page 4 of this document back, signed, dated and the information requested below filled out.

Despite having signed the HOA GPP&R the owner is moving to Texas and they are planning to rent their Condo. The two other homeowners are on the board and don't plan on doing anything about it. Before I approach the homeowners I want to make sure of my facts. My question is can I as a board member hire an attorney to enforce the owner occupied requirement even if the other board members don't want to? Does the HOA have to pay for the attorney if I procced on my own? Do you feel that the HOA or myself would have a judge rule in our favor or in favor of the homeowner that wants to rent their unit?

 

[FlyingRon]

You don't even have to be on the board. Band together with enough like minded owners to share the costs of an attorney. I'd avoid stating that you have any authority to act as a board member if the majority (or whatever your documents require) isn't behind you.

 

[adjusterjack]

My question is can I as a board member hire an attorney to enforce the owner occupied requirement even if the other board members don't want to?

If you cannot get the "board" to seek an injunction using the HOA funds to hire an attorney, then you cannot do this as a "board" member.

Does the HOA have to pay for the attorney if I procced on my own?

You will have to enforce the restrictions on your own as a private citizen using your own money to hire a lawyer.

Do you feel that the HOA or myself would have a judge rule in our favor or in favor of the homeowner that wants to rent their unit?

Nobody can predict the outcome. All I can say is that the restrictions are a binding contract on the owners of the condos and should be enforceable.

 

[LdiJ]

I agree with those who state that you cannot do this as a board member or expect the HOA to pay for it if you would be outvoted by the other board members. However, again, you can certainly do it as a private citizen and get other, like minded residents to share the cost of the attorney.

Why are you so opposed to renters? Your attorney will ask that so marshal your thoughts on that.

 

[adjusterjack]

get other, like minded residents to share the cost of the attorney.

This is a 4 unit association. One of the owners is moving and wants to rent out his condo. Two of the owners don't care and won't do anything. There aren't any other like minded people for the OP to draw on.

 

[PayrollHRGuy]

Well, then you are on your own.

 

[LdiJ]

This is a 4 unit association. One of the owners is moving and wants to rent out his condo. Two of the owners don't care and won't do anything. There aren't any other like minded people for the OP to draw on.

Well, then the OP is seriously outvoted. I cannot imagine how the OP could prevail. There is a 3/4 majority to change the CC&Rs.

 

[justalayman]

You need to take your cc and r’s to an attorney and have them read.

Without reading them you won’t know what recourse the hoa has when a rule is violated. Sometimes, the cc and r’s are little more than a piece of paper.

Generally, you won’t have the right to act independently to enforce the rules of the hoa as the rules generally give the board the right to enforce the rules. The rules often give the board discretion in enforcing them. You, as an individual, typically do not have the right to side step the board and seek enforcement of the rules on your own. More often your action would be against the board itself seeking the court demand the board enforce the rules. Without reading the association rules, it cannot be known if that is even a possibility and, referring back to my first statement, what authority the board has to enforce a rule.

 

[festival]

You can bring legal action against other owner(s) who violate the CC&Rs. You can also bring an action against the association for its failure to carry out its duties (although it doesn't always work). This is in California Civ. Code §5975.

Some actions can be brought to small claims court to enforce, although I don't know if rental restrictions is one of them. If you win in court, you may be entitled to reasonable attorney fees and costs.

Before bringing it to court, there are simpler methods.

You can present a written demand for Internal Dispute Resolution, which will force a meet and confer. This may not be that different than what you have already done in talking to other board members, but it does force the issue using a legal framework, Civil Code §5910.

There is also Alternative Dispute Resolution, Civil Code §5925.

I suggest you do an internet search for these. Some can be done without a lawyer, but at some point you will need to consult a lawyer who specializes in HOA law.

On the other hand, you may just want to negotiate for ways to get a good tenants such as the landlord getting references, limiting the number of occupants, pre-screening for your rules issues that are important, noise, parking, etc., and getting a lease addendum for your condo rules.

 

[justalayman]

You can bring legal action against other owner(s) who violate the CC&Rs. You can also bring an action against the association for its failure to carry out its duties (although it doesn't always work). This is in California Civ. Code §5975.

Some actions can be brought to small claims court to enforce, although I don't know if rental restrictions is one of them. If you win in court, you may be entitled to reasonable attorney fees and costs.

Before bringing it to court, there are simpler methods.

You can present a written demand for Internal Dispute Resolution, which will force a meet and confer. This may not be that different than what you have already done in talking to other board members, but it does force the issue using a legal framework, Civil Code §5910.

There is also Alternative Dispute Resolution, Civil Code §5925.

I suggest you do an internet search for these. Some can be done without a lawyer, but at some point you will need to consult a lawyer who specializes in HOA law.

On the other hand, you may just want to negotiate for ways to get a good tenants such as the landlord getting references, limiting the number of occupants, pre-screening for your rules issues that are important, noise, parking, etc., and getting a lease addendum for your condo rules.

And this is a perfect example of why the op needs to have the involved documents read and interpreted by an attorney. Citing a section of code, especially without reviewing it in relation to other sections, can be very misleading. This is part of first section you refer to

(a) The covenants and restrictions in the declaration shall be enforceable equitable servitudes, unless unreasonable, and shall inure to the benefit of and bind all owners of separate interests in the development.  Unless the declaration states otherwise, these servitudes may be enforced by any owner of a separate interest or by the association, or by both.

Many laws do not stand independently but are based on other sections of law.. citing one simple section without reading and applying other associated sections often results in an incorrect conclusion.

Also, in that section, it refers to unreasonable servitudes. Depending on the totality of the facts, prohibiting the use of the unit as a rental could be seen as unreasonable.

 

[not2cleverRed]

Is this related to your other question: https://forum.freeadvice.com/threads/access-to-information.653780/ ?