A "Declaration of Covenants, Conditions and Restrictions" is referred to as "CC&Rs" or as a "Declaration." It is a recorded documentat that contains a legal description of the development and a statement that it is a community apartment project, condominium project, planned development, or stock cooperative. The declaration must additionally set forth the name of the association and the restrictions on the use or enjoyment of property. (Civ. Code § 4250.) Unlike bylaws, which address the governance of an association, CC&Rs describe property rights and obligations of the membership, such as (i) restrictions on the use of property, (ii) member and association maintenance duties, (iii) enforcement powers, (iv) lender protection provisions, (v) assessments obligations and lien/collection rights, (vi) duty to insure, and (vii) dispute resolution and attorneys' fees provisions.
"Covenants" are promises. In effect, a buyer in a common interest development promises to abide by the governing documents and pay his/her assessments. The buyer does not sign an agreement making a promise to abide by the documents; the promise is imposed on the buyer as an equitable servitude that runs with the property and is fully enforceable against the owner of the property. A positive covenant is a promise to do something, and a restrictive covenant is a promise not to do something.
"Conditions" in a contract or agreement can suspend, or rescind, or modify an obligation. In other words, an event must take place before a party to a contract must perform their obligation. There are very few if any real conditions in a set of CC&Rs. Arguably, paying assessments is a condition to keeping one's house or condominium. Failure to pay them can result in the loss of ownership of the house or condo.
"Restrictions" are limitations imposed on owners on the use of their property. For example, restrictive covenants often limit the number and kinds of animals an owner may keep, the alterations they can make to their property, the number of vehicles they can park, etc. The purpose of the restrictions is to maintain property values as well as order among neighbors. They also have the effect of conferring rights on owners. For example, restrictions on the height of trees protect views for owners. (Ekstrom v. Marquesa.) Other rights conferred include rights of ingress and egress and easements.
Categories of Restrictions. There are two categories of restrictions--those found in the CC&Rs (equitable servitudes) and those later adopted by an association's board of directors (rules & regulations). Restrictions found in the CC&Rs are "clothed with a very strong presumption of validity which arises from the fact that each individual unit owner purchases his unit knowing of and accepting the restrictions to be imposed," while rules and regulations are subjected to a reasonableness analysis. (Villa de Las Palmas v. Terifaj.)
Use Rights. Another aspect of CC&Rs is the creation of "use rights" in the negative. In other words, restrictions such as setback requirements, tree height limitations, open areas, etc. protect rights to views and privacy that benefit owners. Although not binding, a lower court decision agreed that CC&Rs conferred rights via the restrictions. (Pasternack vs. Fidelity National Title Insurance Company, Nov. 21, 2017, Case No: 30-2014-00742249-CU-IC-CJC.)
Equitable Servitudes. Even though the courts sometimes treat CC&Rs as contracts, they are not. They are equitable servitudes.
Recordation. CC&Rs may be amended and restated and are effective upon recordation.
Proper Abbreviation. The proper way to abbreviate "Declaration of Covenants, Conditions and Restrictions" is CC&Rs not CC&R's. See explanation.
Enforcement. “[T]here appears no question that, under the Davis-Stirling Act, each owner of a condominium unit either has expressly consented or is deemed by law to have agreed to the terms in a recorded declaration.” (Pinnacle Museum Tower Assn. v. Pinnacle Market Dev'l (2012) 55 Cal.4th 223, 241.) See "Enforcement of CC&Rs."
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.