CC&R restrictions are presumed reasonable. When it comes to internal conflicts within a document (i.e., provisions in the CC&Rs say opposite things) or conflicts between documents (CC&Rs say one thing but the bylaws another) or conflicts between an association's documents and the Davis-Stirling Act or the Corporations Code, boards of directors should seek legal counsel. In most instances, the following rules of interpretation will apply:

Statute Overrides CC&Rs. If the statute uses words such as "notwithstanding any provision of the governing documents to the contrary" or any similar language, the statute overrides the association's CC&Rs. For example, Civ. Code §1366(b) starts with "Notwithstanding more restrictive limitations placed on the board by the governing documents . . . " and then goes on to set a 20% limit on raising regular dues and a 5% limit on special assessments. This means that if your CC&Rs have a 10% cap on regular dues and a 3% cap on special assessments, they were nullified by statute and the higher limits of 20% and 5% now prevail. Another example is found in Civ. Code §1360.5(a):

No governing documents shall prohibit the owner of a separate interest within a common interest development from keeping at least one pet . . .

Statute Defers to CC&Rs. If the statute uses words such as "Unless the declaration otherwise provides . . . " or similar language, the CC&Rs will prevail. For example, Civ. Code §1362 states:

Unless the declaration otherwise provides . . . the common areas are owned as tenants in common, in equal shares, one for each unit or lot.

Frequently, highrise condominiums will assign ownership interest (and the payment of dues) according to the square footage of the unit. If the CC&Rs were silent on the issue, then this statute would assign ownership in equal shares. Another example is found in Civ. Code 1365.5(a):

Unless the governing documents impose more stringent standards, the board of directors of the association shall do all of the following: . . .

Statute is Silent. Frequently, the Davis-Stirling Act is silent on which controls, the statute or the CC&Rs, and you must decide from the general language of the statute which controls. For example, Civ. Code §1363(a) does not contain any of the language described above, nonetheless, it clearly controls because of its use of the word "shall":

A common interest development shall be managed by an association which may be incorporated or unincorporated. The association may be referred to as a community association.

Hierarchy of Documents. In addition to conflicts between governing documents and various statutes, there may be conflicts within and between an association's governing documents. Such conflicts are often resolved by the relative priority or hierarchy of the documents.

Interpretation of CC&Rs.

• CC&Rs are interpreted according to the usual rules for the interpretation of contracts, with a view toward enforcing the reasonable intent of the parties. Nahrstedt v. Lakeside Village (1994) 8 Cal.4th 361, 380-381.

• Courts interpret words in their ordinary and popular sense unless a contrary intent is shown. Harvey v. The Landing HOA (2008) 162 Cal.App.4th 809, 817; Franklin v. Marie Antoinette (1993) 19 Cal.App.4th 824, 829.

• CC&Rs are enacted for the mutual benefit of all members of an association and are to be interpreted so as to give effect to the main purpose of the CC&Rs and avoid an interpretation which will make the CC&Rs extraordinary, harsh, unjust, inequitable or which would result in absurdity. Battram v. Emerald Bay (1984) 157 Cal.App.3d 1184, 1189.

• Courts must consider the CC&Rs as a whole and construe the language in context rather than interpret a provision in isolation. If the contractual language is clear and explicit and does not involve an absurdity, the plain meaning governs. Starlight Ridge HOA v. Hunter-Bloor (2009) 177 Cal.App.4th 440, 447.

• Where two inconsistent provisions govern the same matter, the more specific provision controls over the general provision. Code Civ. Proc. §1859; Starlight Ridge HOA v. Hunter-Bloor.

RESOURCE: See more on the origin and applicability of the Davis-Stirling Act. In addition, boards may contact us if they have questions about the interpretation of their documents or wish to amend or restate them.