Remedies for Common Interest Development Rule Violations

Governing Condominiums and Renters with Legal Knowledge Flows and External Institutions

“…Thus, condominium governance is typically approached obliquely or otherwise subsumed in overlapping discussions of “homeowner associations” (e.g., Chen and Webster 2005), “property owner associations” (e.g., Kress 1994), “common interest communities” (e.g., Barton and Silverman 1994), and “gated communities” (e.g., Kennedy 1995). These various overlapping and often poorly delineated (see Levi 2009) forms of private governance have been proliferating in the United States since at least the early 1970s and are usually asserted to entail excessive rule making and conflict among owners and boards (e.g., McCabe 2005; Low 2003; Elberg 2001; Kim 1998; Kress 1994; McKenzie 1994; Mittelbach and Ebin 1975). While relevant, by attending to these broader forms, these accounts risk overlooking features of governance specific to the condominium.…”

The Rules are Different Here

“…Some courts have held that boards have a fiduciary duty to enforce the CC&Rs (e.g., Posey v. Leavitt, 1991;Riley v. Ferguson, 1999). Many boards enforce rules without discrimination out of concern that enforcement of some but not all rules will be found arbitrary, a potentially successful defense against the board's action (Coventry Square Condo Association v. Halpern, 1981;Elberg, 2001). As a result, homeowners within an HOA have much greater certainty about what their neighbors will do to their homes, and how officials will respond, than do homeowners outside HOAs.…”