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BUYER RESPONSIBLE FOR VIOLATIONS

QUESTION: Is the buyer of a unit responsible for architectural violations in that unit? After a new owner moved into a unit, the downstairs owner started complaining about noise from the unit. The prior owner was a single woman. The new owner is a couple with two young children. We investigated and found the prior owner had installed hardwood floors in violation of our CC&Rs. Can we force the new owner to remove the floors and reinstall carpet?

ANSWER: If the installation was unauthorized and if the association was not aware of the installation, it can probably force the new owner to remove the hardwood floors and install carpet. The buyer would have recourse against the seller for not disclosing the CC&R violation. That could result in a judgment against the seller for the cost of replacing the hardwood floors, depreciated value of the unit, or a recission of the sale.

Civil Code §1466. The buyer might argue that he is not responsible for breach of covenant per Civil Code §1466, which states: "No one, merely by reason 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."

This has been interpreted to apply to the prior owner's debts, i.e., delinquent assessment, fees and fines of the seller since those are personal obligations of the owner:

The obvious 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 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 respondent from liability for the unpaid assessments of its predecessors in interest (Mountain Home Properties v. Pine Mountain Lake Assn. (1982) 135 Cal.App.3d 959.)

An architectural violation, unlike an assessment obligation, follows the land. The buyer of the unit receives all the amenities that go with the property and all the liabilities (architectural violations, not fines or delinquent assessments). As owner of the unit, the new member is obligated to comply with the governing documents. If his unit is out of compliance, he must bring it into compliance.

Civil Code §4525. This section supports the argument that subsequent owners are responsible for architectural violations left by prior owners. Subparagraph (a)(5) requires owners to provide prospective buyers with “[a] copy or 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 section refers to the notice required to precede a disciplinary hearing.

The paragraph continues: “This notice shall not be deemed a waiver of the association’s right to enforce the governing document against the owner or the prospective purchaser of the separate interest with respect to any violation.” This expresses legislative intent that an Association has the right to enforce unresolved violations (at least those which run with the land, such as architectural violations) against current owners and prospective purchasers, regardless of whether or not the notice is actually given.

Finally, the section states: “This paragraph shall not be construed to require an association to inspect an owner’s separate interest.” This sentence clarifies that the Association need not inspect a separate interest as a pre-condition to its right to enforce violations against prospective owners.

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

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