BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 853
                                                                  Page  1

          Date of Hearing:   June 15, 2005

               ASSEMBLY COMMITTEE ON HOUSING AND COMMUNITY DEVELOPMENT
                                 Gene Mullin, Chair
                     SB 853 (Kehoe) - As Amended:  April 7, 2005

           SENATE VOTE  :   37-1
           
          SUBJECT  :   Common interest developments.

           SUMMARY  :     Clarifies that architectural review decisions in  
          common interest development (CID) based on an association's  
          governing documents are preempted by governing law.   
          Specifically,  this bill:  

          1)Specifies notwithstanding any contrary provision in the  
            governing documents, architectural decisions in a CID may not  
            violate governing law including but not limited to building  
            code, land use and public safety.

          2)Deletes erroneous cross references and makes nonsubstantive,  
            technical changes.  

           EXISTING LAW  

          1)Requires architectural review decisions are consistent with  
            governing law including but not limited to the Fair Employment  
            and Housing Act. (Civil Code Section 1378) 

          2)Prohibits architectural decisions that are inconsistent with  
            the association's governing documents. (Civil Code Section  
            1378)

           FISCAL EFFECT  :   None. 

           COMMENTS  :   
           
          Background  :

          There are over 36,000 CIDs in the state that range in size from  
          three to 27,000 units. CIDs make up over three million total  
          housing units which represents approximately one quarter of the  
          state's housing stock. In the 1990s, over 60% of all residential  
          construction starts in the state were CIDs. CIDs include  
          condominiums, community apartment projects, and housing  








                                                                  SB 853
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          cooperatives and planned unit developments. They are  
          characterized by a separate ownership of dwelling space coupled  
          with an undivided interest in a common property, restricted by  
          covenants and conditions that limit the use of common area and  
          the separate ownership interests and the management of common  
          property and enforcement of restrictions by a community  
          association.   CIDs are governed by the Davis Stirling Act as  
          well as the governing documents of the association including the  
          bylaws, declaration, and operating rules. 

          In most CIDs the governing documents of the association require  
          homeowners to go through an architectural review process before  
          making physical changes to their property. In making 
          decisions concerning these changes the association is bound by  
          the restrictions in the governing documents. In some cases the  
          architectural restriction may conflict with governing law  
          including land use and public safety.  For example, fire safety  
          law may require that the vegetation be cleared within a certain  
          distance of structures in fire-prone areas. However, this  
          requirement may conflict with an association's landscaping  
          restrictions. An association may be unsure of their authority to  
          reject the governing documents in favor of governing law until a  
          court rules on the enforceability of the restriction. The result  
          may be unnecessary litigation and potentially unsafe and  
          unlawful conditions.  

          According to the sponsor, California Law Revision Commission,  
          this bill would eliminate any uncertainty for the association by  
          clearly stating that where conflicts exist between the governing  
          law and governing documents, the governing law takes precedent.   
          Further as the sponsor notes, as a matter of policy an  
          association architectural restriction should be preempted by  
          governing land use and public safety law. 

          Existing law already states an association's architectural  
          review must conform to governing law this bill clarifies that  
          that law overrides the governing documents of the association  
          where there is conflict to prevent needless lawsuits and provide  
          guidance to associations. 

           Updating cross references  

          Former Code of Civil Procedure Section 383 provided that a CID  
          homeowners' association can sue on behalf of its members in  
          certain specified actions. It also provided special rules  








                                                                  SB 853
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          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 cross references to reflect the  
          relocation. 

           Double referred  :  The Assembly Committee on Rules referred SB  
          853 to Housing and Judiciary Committee.  The bill passed the  
          Assembly Committee on Judiciary on June 7, 2005 by a vote of 9  
          to 0.
           
          REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          California Law Revisions Commission (Sponsor) 

           Opposition 
           
          None on file. 

           Analysis Prepared by  :    Lisa Engel / H. & C.D. / (916) 319-2085