CERRO DE ALCALA HOMEOWNERS ASSN. v. BURNS
(1985) 169 Cal.App.3d Supp. 1
Fredric D. Kent for Plaintiff and Appellant.
Laurence C. Baldauf, Jr., for Defendant and Respondent.
James Eckmann as Amicus Curiae. [169 Cal.App.3d Supp. Supp. 3]
HAMRICK, Acting P. J.
The plaintiff appeals from a municipal court judgment holding that the
defendant, a condominium owner who is a member of the homeowners
association and who has accepted the covenants, conditions and
restrictions pertaining to his condominium has no personal liability for
his share of maintenance assessments levied by the association after he
vacates his condominium.
Facts of the Case
On November 29, 1974, a declaration of covenants, conditions and
restrictions (CC&Rs) of Cerro de Alcala was filed in the county
recorder's office for the County of San Diego. On or about February 2,
1982, respondent, Harry Burns, agreed to purchase a Cerro de Alcala
condominium unit. According to the escrow instructions respondent agreed
to become a member of the homeowners association and be bound by the
CC&Rs. Respondent received and accepted a deed to the condominium
unit and personally received and signed for the subject CC&Rs which
expressly provide in part as follows: "...by acceptance of a deed for a
unit herein...each owner will promptly pay in full all dues, fees and
After close of escrow respondent took possession of his condominium unit
and remained in possession for five and one-half months. While
respondent occupied his condominium, he paid to the homeowners
association his share of assessments which were levied against his
condominium unit. However, on August 4, 1982, respondent vacated his
condominium unit after the holder of the first trust deed note, Home
Federal Savings, notified respondent that it was enforcing the "due on
sale clause" and would be commencing foreclosure proceedings. Respondent
remained the record title owner of the condominium unit until November
10, 1983, when title was transferred pursuant to foreclosure by a
trustee's deed. Respondent did not pay any assessment fees levied
against his condominium from August 1982, through November 1983, which
amount, after certain credits, was stipulated to be $1,265.02.
The municipal court found that respondent was not personally liable for
the assessments as he had ceased enjoying the benefits of the
condominium when he vacated same.
[1a] Civil Code section 1466 provides in part that "[n]o one, merely by
reason of having acquired an estate subject to a covenant running with
the [169 Cal.App.3d Supp. 4] land, is liable for a breach of the covenant...after he has parted with it or ceased to enjoy its benefits."
 It is undisputed that the maintenance assessments are in fact
covenants running with the land as the CC&Rs include a provision
that each homeowner was to pay his or her proportionate share of
maintenance fees. The intent that the Cerro de Alcala covenants were to
run with the land was expressly manifested in the deed through which
Burns acquired title. Further, maintenance assessments "touch and
concern the land" as the payments go directly to the maintenance of the
grounds and the making of necessary repairs. Finally, the covenants
specifically bound all successors without distinction as to how the
property is acquired.
[1b] Respondent, however, asserts that because he "vacated" the premises
in August 1982, after being advised of foreclosure proceedings, Civil
Code section 1466 was triggered, releasing him of any further liability.
Thus, the key issue is whether a vacating of the premises constitutes
either a parting or ceasing of enjoyment of the property (as described
in Civ. Code, § 1466).
We hold that it does not. Abandonment of a right or property is the
voluntary relinquishment thereof by its owner with the intention of
terminating his ownership, possession and control and without vesting
ownership in another person. (Carden v. Carden (1959) 167 Cal.App.2d 202,
209 [334 P.2d 87].) In the present case, there simply is no showing of
such intent. In order for an owner to abandon a unit in a community
association so as to divest himself of the duty to pay assessments, the
owner must give the association record notice of the abandonment through
the recording of a quitclaim deed, notice of abandonment or other
recorded instrument which makes it clear that the owner is relinquishing
all of the rights of ownership. Thus, vacating of the premises (mere
relinquishment of possession) does not release a homeowner of liability
arising from maintenance assessments becoming due.
Although respondent ceased to enjoy the possession of his property, he
continued to enjoy other aspects of ownership until the very moment of
recordation of the trustee's deed which effected a transfer of the
property. As the record owner of the property, respondent continued to
benefit from the homeowners association's ongoing schedule of
maintenance and repairs to the common areas. In addition, respondent
benefited from the protection of a policy of general liability insurance
maintained by the homeowners association. Also, at all times prior to
the transfer of title, respondent was entitled to lease, encumber,
assign, exchange or sell the property as well as [169 Cal.App.3d Supp. 5]
reoccupy the unit at no expense. Thus, it is clear that respondent did
not cease to enjoy the benefits of the estate by voluntarily vacating
It should be noted that Civil Code section 1356, which gives the
homeowners association the right to collect assessments made in
conformity with their CC&Rs specifically makes this obligation a
"debt of the owner" at the time the assessment is made. Therefore, such
obligation is personal in nature, even though it may also become a lien
against the property under circumstances as provided in that code
 Respondent's final contention is that Code of Civil Procedure
section 580b precludes a deficiency judgment after a sale of real
property for failure of the purchaser to complete his contract of sale.
This code section has no application to the instant case as this is not
an action for deficiency pursuant to a default of a purchase price.
Rather this is an action arising from an independent covenant. Unlike
the first trust deed holder, the homeowners association is not a party
to the sale transaction, nor is the association a lender of funds. In
addition, a homeowners association does not have the ability to demand
security from the buyer and the association must accept the buyer and
cannot avoid the transaction. Therefore, the association is not a member
of the class intended to be affected by the transactions covered by
Code of Civil Procedure section 580b, nor are the protections afforded
by Code of Civil Procedure section 580b intended to defeat the interest
of the homeowners associations.
[1c] Based on the foregoing we hold that an owner of a condominium unit
and a member of the homeowners association retains substantial benefits
of ownership notwithstanding the relinquishment of physical possession
of the condominium unit and may not avoid payment of maintenance
assessments levied pursuant to CC&Rs accepted by the owner merely by
physically removing himself from the property.
Accordingly, judgment of the lower court is reversed with instructions
to enter judgment in favor of plaintiff/appellant, Cerro de Alcala
Homeowners Association, in the stipulated amount of $1,865.02, less a
$600 credit for a net amount of $1,265.02.
Kremer, J., and Duffy, J., concurred