There can be a lot of good things about living in a planned unit development that is subject to CC&Rs (Covenants, Conditions, and Restrictions) and that is governed by a Homeowners Association (HOA). But there can be bad things too. One of the bad things occurs when the HOA directors – for whatever reason – fail to enforce the CC&Rs.

When this happens, what is a member supposed to do? The first thing, of course, is to go to the directors and ask them to abide by or enforce the CC&Rs. But that doesn’t always work. The board’s failure may be willful, and it may refuse to change its ways. When that happens, the member may have to resort to the courts.

It is pretty clear that courts don’t like to become embroiled in HOA v. member(s) disputes, and, in California at least, they (the courts) have made it clear that they will not get involved in second guessing "at least as far as ordinary managerial decisions are concerned." This is known as the "judicial deference" rule which arose out of the case Lamden v. La Jolla Shores Clubdominium Homeowner’s Association. But, as a recent decision from California’s Fourth Appellate District Court of Appeal (Ekstrom et. al v. Marquesa at Monarch Beach Homeowners Association) makes clear, the courts will not always defer to the decisions of an HOA board.

In the Marquesa case the dispute had to do with HOA rules regarding view-obstructing trees.

Marquesa at Monarch Beach is a planned development community, subject to CC&Rs and governance by an HOA Board of Directors. A number of the lots have ocean views, which are not only pleasant, but also worth a lot of money.

In the Marquesa CC&Rs, Section 7.18, titled "Trees", provides the following: "All trees, hedges and other plant materials shall be trimmed by the Owner of the Lot upon which they are located so that they shall not exceed the height of the house on the Lot; provided, however, that where trees do not obstruct the view from any of the other Lots in the Properties, which determination shall be within the sole judgment of the [Architectural Committee], they shall not be required to be so trimmed."

Regrettably, the HOA directors chose not to enforce this provision evenly when some homeowners complained that their views were being blocked. Even though Section 7.18 had been enforced with respect to a variety of other trees, "The majority of the Board was of the opinion the aesthetic benefit to the entire community from the maturing and now very lush looking palm trees outweighed the value of preserving views of just a few homeowners." Never mind that one of the board members "owned a property on which over 20 palm trees are planted, several of which are among those now blocking the Plaintiffs’ views."

The board attempted to have Section 7.18 amended, but there were not sufficient votes in favor. When the affected homeowners (whose views were blocked) requested mediation, the board declined. Naturally, a lawsuit followed.

The trial court said that "the Association did not have discretion to exempt from enforcement palm trees that were found to block views," and it ordered that the trees be trimmed and/or removed.

The board raised the judicial deference rule, in effect saying that the court ought not to second guess its decisions, and it appealed. But the appellate court agreed with the trial court. It said that the judicial deference rule applied "as far as ordinary managerial decisions are concerned." But the rule did not extend "to board decisions that are outside the scope of its authority under the governing documents." Of course the board had no authority to ignore the governing documents. "The Board’s interpretations of the CC&Rs were inconsistent with the plain meaning of the document and thus not entitled to judicial deference."

So much in life is a question of balancing. HOA boards ought not to have to worry that every business decision they make (Should we have local termite treatment or should we tent? Should we hire this gardener or that one?) might be subject to judicial review. On the other hand, they should never think they have the right to ignore or violate CC&Rs just because they disagree with them. The Ekstrom ruling confirms that.

Published: May 26, 2009

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Bob Hunt is a former director of the National Association of Realtors and is author of the recently published book, "Real Estate the Ethical Way." A graduate of Princeton with a master's degree from UCLA in philosophy, Hunt has served as a U.S. Marine, Realtor association president in South Orange County, and director of the California Association of Realtors, and is an award-winning Realtor. Contact Bob at .