On Mon, 04 Dec 2000 23:34:37 -0000, "Mary Arnold" <tarnold@...>
wrote:

>The CCR's are a deed restriction. How is this construed to be a
>contract? Please explain!

See the following recent California Court of Appeal ruling that
construes CC&Rs as contractual in nature:

On Tue, 07 Nov 2000 12:50:35 -0800, in
misc.consumers.house.homeowner-assn info@... wrote:

>Developer’s CC&R’s provision requiring binding arbitration of construction
defect claims is unconscionable contract
>provision and violates public policy, C.A. 4th rules.
>
>The Court of Appeal 4th has affirmed an Orange County Superior Court ruling
invalidating a provision
>contained in the declaration of a condominium development that requires
construction defect disputes between the developer
>and unit owners or the homeowners association to be submitted to binding
arbitration. The C.A. 4th ruled the provision
>constitutes an unconscionable contract provision because it is buried near the
end of the 70-page declaration and therefore
>presents homebuyers with the danger of unwittingly relinquishing their right to
have a construction defect claim heard in the
>courts. The arbitration clause also violates public policy in that Code of
Civil Procedure section 1298.7 provides home
>buyers the right to bring a judicial action for construction or design defect
damages even when the purchase agreement
>contains a binding arbitration clause, the court ruled. The C.A. 4th
specifically rejected the developer’s contention that the
>CC&R’s are not governed by contract law but instead are equitable servitudes
under Civil Code section 1354(a), citing
>three rulings since 1986 that held that CC&R’s are to be construed as
contracts.

But also note this low court law and motion ruling that found
otherwise:


>ITEM 7 99AS00649 FRANCES LETT HALE VS. RANCHO MURIETA ASSOC, INC., ET AL
> Nature of Proceeding: DEMURRER
> Filed By: WISEMAN, DYLAN W.
>
>
> Defendant's general demurrer to the Second and Third causes of
> action in the first amended complaint is SUSTAINED, without leave to
> amend.
> The second cause of action for breach of contract fails because
> CC&Rs are not contracts. They are equitable servitudes which are
> usually enforced through injunctive relief. Plaintiff relies on a
> single sentence in Miller and Starr (which references a 1962 case) that
> CC&Rs may be enforced through an action for breach of contract.
> Defendant's more recent authority as well as the complete discussion in
> Miller and Starr regarding enforcement is more persuasive.
> The third cause of action for breach of implied covenant
> necessarily fails as it depends on the existence of a contract.

http://www.saccourt.com/courtrooms/trulings/dept53/aug14d53.tr

But see a subsequent California Court of Appeal ruling in an unrelated
case that found CC&Rs are contracts:

To: hoaa@egroups.com
Subject: (fwd) California Court of Appeal strikes down developer's
CC&R's provision requiring arbitration of construction defect claims
From: Frederick L. Pilot <fpilot@...>
Date: Tue, 07 Nov 2000 13:11:34 -0800

With this ruling, it appears the Court of Appeal has resolved -- at
least for now unless the case ends up in the California Supreme Court
-- the debate re whether CC&R's sound in contract law or are equitable
servitudes under real property law. Some of you may recall the recent
Sacramento Superior Court law and motion ruling in which the court
ruled CC&R's are not contracts but are equitable servitudes.


On Tue, 07 Nov 2000 12:50:35 -0800, in
misc.consumers.house.homeowner-assn info@... wrote:

>Developer’s CC&R’s provision requiring binding arbitration of construction
defect claims is unconscionable contract
>provision and violates public policy, C.A. 4th rules.
>
>The Court of Appeal 4th has affirmed an Orange County Superior Court ruling
invalidating a provision
>contained in the declaration of a condominium development that requires
construction defect disputes between the developer
>and unit owners or the homeowners association to be submitted to binding
arbitration. The C.A. 4th ruled the provision
>constitutes an unconscionable contract provision because it is buried near the
end of the 70-page declaration and therefore
>presents homebuyers with the danger of unwittingly relinquishing their right to
have a construction defect claim heard in the
>courts. The arbitration clause also violates public policy in that Code of
Civil Procedure section 1298.7 provides home
>buyers the right to bring a judicial action for construction or design defect
damages even when the purchase agreement
>contains a binding arbitration clause, the court ruled. The C.A. 4th
specifically rejected the developer’s contention that the
>CC&R’s are not governed by contract law but instead are equitable servitudes
under Civil Code section 1354(a), citing
>three rulings since 1986 that held that CC&R’s are to be construed as
contracts.

http://www.cicproject.org/cases.html#vm



>Mary
>
>
>--- In HOMEOWNERSSUPPORTINGHOMEOWNERSINASSN@egroups.com,
>rjkelly2@j... wrote:
>> I'm not an attorney but as I understand the first requirement of a
>> contract is: Both parties must agree or have a meeting of the mind
>to
>> make a contract. To my understanding this rarely ever happen in
>any HOA.
>>
>> On Fri, 01 Dec 2000 11:20:29 -0800 "Frederick L. Pilot"
>> <fpilot@d...> writes:
>> > On Fri, 1 Dec 2000 11:37:25 -0700, "Mika Sadai"
>> > <mikasad@e...> wrote:
>> >
>> > >
>> > >-----Original Message-----
>> > >From: Mika Sadai <mikasad@e...>
>> > >To: hoanet@egroups.com <hoanet@egroups.com>
>> > >Date: Friday, December 01, 2000 11:35 AM
>> > >Subject: Re: [hoanet] AZ HOA committee recommendations by CAI
>> > >
>> > >
>> > >When we say that we need "enforcement", they interprete it as a
>> > demand for a stricter enforcement of CC&Rs restrictions upon the
>> > homeowners. LOL!
>> > >
>> > >We need to clarify that we demand accountability of the HOA,
>BOD,
>> > directors, committees, officers, agents, management etc. for
>their
>> > actions if they act unlawfully. We need enforcement of the
>CC&Rs,
>> > bylaws, statutes etc. upon the Association.
>> > >
>> > >If the CC&Rs are a contract (and legally they are, at least for
>> > now), then both parties must have the obligation to abide by
>them,
>> > not only the homeowner who had been sucked into "signing" this
>> > adhesion contract. Because the CC&Rs usually provide only one-
>sided
>> > means of enforcement (fines, liens, foreclosures, suspension of
>> > voting rights or usage of facilities or services), the
>legislature
>> > must provide the tools for the homeowner to enforce the CC&Rs
>upon
>> > the HOA, such as: monetary penalties for the violation by the
>HOA,
>> > BOD etc.; voiding unlawful action by the HOA, BOD etc.;
>releasing
>> > the party that has been violated from his/her obligations under
>the
>> > contract; and finally, in extreme cases, declaring the contract
>> > null and void.
>> > >
>> > >Unless we state it clearly, they will give us only nickels and
>> > dimes. What's your opinion, folks?
>> >
>> > Something to toss into the policy discussion re HOAs: There have
>> > been
>> > anecdotal accounts that CC&R enforcement in some newer
>developments
>> > in
>> > Calif. has been relegated to local municipalities. (With the
>> > declaration providing an option for the property owners to form
>an
>> > HOA
>> > if desired to fulfill that function).
>> >
>> > In addition, special districts -- a legislatively created form of
>> > local government in CA -- are usually empowered to enforce CC&Rs.
>> >
>> >
>> > -------------------------- eGroups Sponsor
>> >
>> > To unsubscribe from this group, send an email to:
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>> >
>> >
>> >
>> >
>>
>>
>> R. Kelly <rjkelly2@j...>
>> Gold CanyonAZ
>> ________________________________________________________________
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>
>
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