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, it can require 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. Sellers are obligated by the Davis-Stirling Act to provide prospective buyers with 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." (Civ. Code § 4525(a)(5).) Even if no prior notice had been given by the association, the buyer remains liable for the violation since the association is not required to inspect an owner’s separate interest prior to sale. (Civ. Code § 4525(a)(5).)
Not Prior Debts. 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." The courts have interpreted the statute 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.)
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 with respect to any violation. This paragraph shall not be construed to require an association to inspect an owner’s separate interest.
This provision does more than just offset the voiding of the recorded “notice of non-compliance” addressed in Ward v. Superior Court (1997) 55 Cal.App.4th 60 (as footnote 1 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 which can be recorded in the public land title records.” Civil Code § 4525(a)(5) specifically discusses the right to enforce the governing documents against the prospective purchaser.
Violations Follow the Land. An architectural violation 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). 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 the violation. Accordingly, new owners are obligated to comply with the governing documents by correcting the violation. If the seller failed 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.
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