Private Restrictions on Real Property
Conditions, Covenants & Restrictions (CC&R)
CC&Rs are often associated with subdivisions, condominium and town-home projects and other developments in which either the original developer or a subsequent association of owners of individual lots or units agree to establish rules governing all present and future owners’ use of property in the development. If CC&Rs are adopted or amended after a development is built, such action usually is taken by a vote of the homeowners.
CC&Rs can govern payment of monthly charges, use of the common areas, architectural design of new structures, responsibility for landscaping, and almost any other facet of property use in the development. Often CC&Rs restrict incompatible uses in a residential subdivision such as car repairing, dog breeding or dog kennels, etc. Architectural restrictions can control the design, size, construction materials and exterior finish of the structure. Specifically prohibited under California law are any restrictions based on “race, color, religion, sex, sexual orientation, familial status, marital status, disability, national origin, source of income, or ancestry.” Thus a condition limiting units to single-family occupancy would have to be interpreted to mean number of occupants per unit rather than such a restriction being based on familial status which would prohibit unrelated persons or multiple families from owning a unit.
Part of Title Report
CC&Rs are usually recorded with the County Recorder in order to put potential buyers of lots or units on notice that the property they are buying is subject to restrictions. The existence of CC&Rs will show up in the Preliminary Title Report which is usually issued as part of a real estate transaction. Some CC&Rs recorded in prior years contain restrictions that are prohibited today. Legislation passed in 1999 says that allowing any CC&Rs which still contain unlawful restrictions to continue to exist of record without removing those restrictions constitutes “discrimination”. Before January 1, 2001 any developer, group of owners or homeowners association who have responsibility for such discriminatory CC&Rs “shall restate the declaration or other governing document without the [unlawful] restrictive covenant but with no other change to the declaration or governing document.”
CC&Rs are private agreements among the current owners of the development or between the current owners and the homeowner’s association and, if not followed, can be enforced either by internal sanctions or eventual action in a court with appropriate jurisdiction. CC&Rs usually are in addition to conditions in a subdivision map, use permit or development agreement adopted by the city or county that originally approved the development. Alleged violation of local agency map or permit conditions can be enforced by bringing the alleged violation to the attention of the code enforcement officer of the agency. CC&R conditions and restrictions, however, are not enforced by the local agency. Private restrictions are also not considered by the assessor in valuing such properties when changes of ownership occur.
While this article is not meant to contain legal advice, the author acknowledges the assistance of Terrence A. Carlson, Esquire.