If you live in a condominium or a planned community governed by a Homeowners Association (HOA), you have likely heard about Covenants, Conditions and Restrictions, which are commonly referred to as CC&Rs. CC&Rs are legal documents containing rules and regulations homeowners in the community must follow. These documents are recorded with the county where the property is located and are legally binding on the residents of the community to the extent the CC&Rs do not conflict with federal or state law. They are also presumed valid until proven otherwise.
Although the rules contained in CC&Rs can differ widely among communities, there are some terms that are commonly seen. Some of these commonly seen terms will be discussed below.
Pets
It is very common for CC&Rs to contain a provision regarding pets, including the number of pets that can be in a unit and the kind of animals homeowners can have. Currently, CC&Rs cannot prohibit a homeowner within a community from keeping at least one pet. Pets included in this protection are domesticated dogs, cats and birds, as well as, aquatic animals kept in an aquarium or other animals agreed to by the HOA.
Although CC&Rs cannot prohibit keeping at least one pet, the CC&Rs or other governing rules can include reasonable rules and regulations. For example, the CC&Rs can still contain restrictions on breed and size/weight of pets allowed. The CC&Rs can also restrict the number of pets a homeowner can have in their home at one time as long as the restriction allows for at least one pet. Moreover, if a HOA makes changes to any rules of the community, including CC&R provisions related to restricting the number of animals, they cannot prohibit an owner from continuing to keep the pets permitted under the previous rules.
Service animals and emotional support animals cannot be restricted by HOAs in the same manner as animals considered pets. Generally, HOAs must comply with applicable state and federal laws governing service animals and emotional support animals.
Maintenance
A second common term often discussed in CC&Rs is maintenance, including maintenance of common areas and exclusive use common areas. The types of common areas and exclusive use common areas in a community differ greatly depending on the type of community. In condominiums, there are generally more items that are considered common areas. For example, the lot where the development sits might be considered a common area, along with plumbing lines, roofs, hallways, stairs, elevators, carports, parking lots, and yards. On the other hand, exclusive use common areas in a condominium community may include balconies, patios, and storage spaces.
With regard to common areas, unless the CC&Rs or other governing documents state otherwise, the association is responsible for maintaining, replacing and repairing issues in the common areas. Furthermore, HOAs have a duty to visually inspect common areas at least every three years; the inspection can be performed by the HOA board members themselves or an agent. Board members must also investigate any complaints made by a homeowner related to necessary maintenance.
With regard to exclusive use common areas, the HOA is responsible for repairs and replacements unless the CC&Rs or other governing documents state otherwise.
Rental Restrictions
A third common area generally restricted through CC&Rs are homeowners using their units as rental properties. Beginning January 1, 2021, CC&R provisions that prohibit, have the effect of prohibiting or unreasonably restrict a homeowner from renting their unit are no longer enforceable. However, HOAs are still permitted to prohibit short term or transient rentals, which are rentals with a term of 30 days or less. HOAs may also still enforce caps on the number of units that can be used as rentals at one time; the cap cannot be less than 25 percent of the units.
Commercial Use/Home Business
A forth common term included in CC&Rs is one prohibiting or restricting homeowners from using their homes for the operation of commercial and business practices. Generally these provisions are drafted broadly; the courts are permitted to defer to the HOA board to determine if a homeowner has violated the restriction. In addition to prohibiting commercial use, CC&Rs can also restrict or prohibit the display of commercial signs.
Although HOAs are permitted to include prohibitions and restrictions related to commercial use, provisions restricting some businesses, such as family day care homes, are unenforceable. A family day care home is defined as a home that 1) regularly provides care, protection and supervision for 14 or fewer children; 2) in the provider’s own home; 3) for periods of less than 24 hours per day; and 4) while the parents or guardians are away. The legislature rendered restrictions in CC&Rs and other governing documents void if the provision “restricts or prohibits directly, or indirectly limits, the acquisition, use, or occupancy of property for a family day care home.”
If you have questions regarding terms in your current CC&Rs or CC&Rs regulating a home you are looking to purchase, contact an experienced real estate attorney to discuss.
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