BILL ANALYSIS
SB 853
Page 1
Date of Hearing: June 7, 2005
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
SB 853 (Kehoe) - As Amended: April 7, 2005
SENATE VOTE : 37-1
SUBJECT : COMMON INTEREST DEVELOPMENTS: ARCHITECTURAL REVIEW
KEY ISSUE : SHOULD THE ARCHITECTURAL REVIEWS UNDERTAKEN BY
COMMON INTEREST DEVELOPMENTS TO DETERMINE WHETHER HOMEOWNERS MAY
ALTER THEIR OWN STRUCTURES BE PREEMPTED BY GOVERNING LAND USE
AND PUBLIC SAFETY LAW?
SYNOPSIS
This non-controversial bill, sponsored by the California Law
Revision Commission (CLRC), seeks to clarify that Common
Interest Development (CID) decisions on a homeowner's proposed
change must be consistent with land use and public safety law,
notwithstanding any contrary provision in the association's
governing documents. As the sponsor explains, CIDs are bound by
restrictions in the associations' governing documents when
deciding whether to approve homeowners' proposed changes to
their own structures or the common area. According to the CLRC,
an association's architectural restriction should be preempted
by governing land use and public safety law as a matter of
policy. The sponsor believes that this bill will avoid disputes
that may result when an association's architectural restrictions
conflict with the law. It will also clarify that CIDs must not
seek to enforce non-conforming restrictions. There is no
opposition to this bill.
SUMMARY : Clarifies that CID architectural review decisions
based on an association's governing documents are preempted by
governing law. Specifically, this bill :
1)Specifies that notwithstanding a contrary provision of the
governing documents, a CID decision on a homeowner's proposed
change may not violate any governing provision of law,
including but not limited to, building codes, land use or
public safety laws.
2)Deletes erroneous cross references and makes non-substantive,
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technical changes in reference to these provisions.
EXISTING LAW:
1)Sets out the rights and responsibilities of the community
association that manages the CID. (Civil Code section 1363.
All further references are to this code unless otherwise
indicated.)
2)Establishes the right of CID associations to devise covenants
and restrictions reflected in the governing declaration of the
association. (Section 1354.)
3)Requires that when a CID association's governing documents
require association approval before an owner may make a
physical change to the owner's separate interest or to the
common area, the association must satisfy specified
provisions. Among these provisions is a requirement that a
decision on a proposed change be consistent with any governing
provision of law, including the Fair Employment and Housing
Act. (Section 1378.)
4)Provides that a CID association has standing to institute,
defend, settle, or intervene in specified civil proceedings in
its own name, and addresses the reduction of damages for
comparative fault in this context. (Section 1368.3.)
FISCAL EFFECT : As currently in print, this bill is keyed
non-fiscal.
COMMENTS : The sponsor, the California Law Revision Commission
(CLRC), points out that the Davis-Stirling Common Interest
Development Act provides the legal framework under which
homeowner associations operate in common interest developments.
In addition to the requirements of the Act, each CID is governed
by a homeowner association according to the recorded
declarations, bylaws, and operating rules of the association.
According to the sponsor, this non-controversial bill, seeks to
clarify that a CID's architectural restrictions must not
conflict with the law, notwithstanding contrary provisions of a
CID's own governing documents. The CLRC also states that this
bill seeks to avoid disputes and uncertainty that can result
when an association's architectural restrictions conflict with
land use or public safety law. In support of the bill, the CLRC
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writes:
Fire safety law may require that vegetation be cleared
within a certain distance of structures in fire-prone
areas. This requirement might conflict with an association
landscaping restriction. In such a case, the association
may be unsure whether its restriction is preempted and may
feel duty-bound to enforce its restriction until a court
rules on the enforceability of the restriction. This
uncertainty can lead to unnecessary litigation and expense
and may result in perpetuation of an unlawful and unsafe
condition.
Existing law requires that an association's architectural review
be consistent with governing law and must subordinate an
association restriction to important public policies. According
to the CLRC, an association's architectural restriction should
be preempted by governing land use and public safety law as a
matter of policy. This bill is consistent with other laws that
subordinate an association's restrictions to important public
policies. Moreover, the sponsor's view is supported by the
holding in Nahstedt v. Lakeside Village Condominium Association,
Inc. 8 Cal 4th 361 (1994) which clearly establishes that CID
restrictions are unenforceable if they violate public policy.
As the CLRC correctly points out, where public policies are
expressed through laws and regulations, CID restrictions or
decisions of an architectural review commission, may not violate
federal, state, or local laws or regulations. As such, this
bill will avoid disputes that may result when an association's
architectural restrictions conflict with the law.
The sponsor also states that the bill eliminates any uncertainty
as to whether an architectural restriction that conflicts with
governing law should be enforced. Since the bill specifically
identifies the sources of law that are most likely to preempt a
CIDs architectural restrictions, the bill also clarifies that
CIDs must not seek to enforce non-conforming restrictions that
may be contained in the governing documents. The bill provides
clear guidance to association board members and avoids the need
for a lawsuit to invalidate non-conforming restrictions.
As stated by the sponsor, "land use and public safety laws
implement important public policies. They ensure that
structures conform to established health and safety and
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construction standards. The burden of an architectural
restriction that requires maintenance of an unsound or unsafe
condition outweighs the benefit of aesthetic uniformity."
Conforming Changes Reflect Updated Cross-References . Former
Code of Civil Procedure section 383 provided that a CID
homeowner's association can sue on behalf of its members in
certain specified actions. It also provided special rules
relating to comparative fault in such a suit. In 2004, Section
383 was repealed and the substance moved to the Davis-Stirling
Act. This bill updates statutory cross-references to reflect
the relocation.
REGISTERED SUPPORT / OPPOSITION :
Support
California Law Revision Commission (sponsor)
Opposition
None on file.
Analysis Prepared by : Cynthia Alvillar / JUD. / (916) 319-2334