Undisclosed Architectural Violations
 

Sometimes an owner makes alterations without the association's knowledge — alterations that would not be approved, such as hardwood floors prohibited by the CC&Rs. The owner then sells his unit without disclosing the violation to the buyer. The association learns of the violation when a downstairs owner begins complaining about noise. The association investigates, confirms the violation, and orders the buyer to remove the hardwood floors and install carpet.

Architectural Violation Is Not A Prior Debt. The buyer might argue that he is not responsible for a breach of covenant per Civil Code § 1466, which states: "No one, merely because of having acquired an estate subject to a covenant running with the land, is liable for a breach of the covenant before he acquired the estate, or after he has parted with it or ceased to enjoy its benefits." The courts have interpreted the statute to apply to the prior owner's debts, i.e., delinquent assessments, fees, and fines of the seller, since those are personal obligations of the owner:

The apparent purpose of section 1466 is one of fairness to a party who acquires property. Since such a party has no connection with the property until he comes into possession, the Legislature has provided that the party should not be liable for the debts of its predecessors in interest. ...essential fairness dictates that the respondent should not be held liable for unpaid assessments for which it will receive nothing in return. ...Thus, it is our conclusion that section 1466 protects the respondent from liability for the unpaid assessments of its predecessors in interest (Mountain Home Properties v. Pine Mountain Lake Ass'n (1982) 135 Cal.App.3d 959)

Recourse Against the Seller. The new owner has recourse against the seller for failing to disclose the CC&R violation. Sellers are obligated by the Davis-Stirling Act to provide prospective buyers with a "summary of any notice previously sent to the owner under Section 5855 that sets forth any alleged violation of the governing documents that remains unresolved at the time of the request." (Civ. Code § 4525(a)(5)) Even if the association gave no prior notice, the buyer remains liable for the violation because the association is not required to inspect an owner’s separate interest before the sale. (Civ. Code § 4525(a)(5))

No Waiver of Association's Rights

Civil Code § 4525(a)(5) makes it clear that Civil Code § 1466 doesn’t abrogate the association’s right to enforce violations of the governing documents against the new owner:

A copy or a summary of any notice previously sent to the owner pursuant to Section 5855 that sets forth any alleged violation of the governing documents that remains unresolved at the time of the request. The notice shall not be deemed a waiver of the association’s right to enforce the governing documents against the owner or the prospective purchaser of the separate interest concerning any violation. This paragraph shall not be construed to require an association to inspect an owner’s separate interest.

This provision does more than offset the voiding of the recorded “notice of non-compliance” addressed in Ward v. Superior Court (1997) 55 Cal.App.4th 60 (as footnote one says, “The issue here is not whether CC&Rs can be enforced. It is whether a notice of violation of CC&Rs is a type of document that can be recorded in the public land title records.” Civil Code § 4525(a)(5) discusses the right to enforce the governing documents against the prospective purchaser.

Violations Follow the Land

An architectural violation follows the land. The buyer receives all amenities that come with the property and all liabilities (architectural violations, not fines or delinquent assessments). Obligations transfer from the seller to the buyer. (Civ. Code § 1468) The violation continues from the seller to the buyer. Owners cannot nullify a continuing violation of the CC&Rs by selling their property before correcting it. Accordingly, new owners must comply with the governing documents by correcting the violation. If the seller fails to disclose the violation to the buyer, the new owner may have a cause of action against the seller for the cost to correct the violation.

ASSISTANCE: Associations needing legal assistance can contact us. To stay current with community association issues, subscribe to the Davis-Stirling Newsletter.