Rancho Santa Fe Association v. Dolan-King

97 Cal.Rptr.2d 280 (2000)

282*282 Horvitz & Levy, Barry R. Levy, Daniel J. Gonzalez, Encino; Musick, Peeler & Garrett, Gary L. Wollberg, San Diego, for Defendants and Appellants.

David A. Niddrie; Garrison & McInnis, Donald E. McInnis, Robert R. Massey, San Diego, for Plaintiff and Respondent.

281*281 O’ROURKE, J.

After the Board of Directors (the Board) of the Rancho Santa Fe Association (the Association), on the advice of a five-person “Art Jury,” rejected Patricia Dolan-King’s proposed plans for home additions and a perimeter fence on her property, Dolan-King sued the Association seeking a declaration that its actions were invalid. Following 283*283 a bench trial, the court declared the Association’s rejection of the plans arbitrary and an “abuse of power” and entered judgment in Dolan-King’s favor. The Association appeals, claiming the court misinterpreted the protective covenant governing land use and aesthetic standards for Dolan-King’s property, improperly substituted its own judgment for that of the Association and Art Jury and failed to exercise the proper judicial deference for the Association’s aesthetic decisions.

We conclude the relevant provisions of the protective covenant are enforceable equitable servitudes, and, with regard to Dolan-King’s improvement applications,Dolan-King failed to meet her burden to show the Board’s decisions were unreasonable and arbitrary under the circumstances. Accordingly, we reverse the judgment and order and direct the court to enter judgment for the Association.

FACTUAL AND PROCEDURAL BACKGROUND

In 1996, Dolan-King purchased a home on an approximately three acre lot in the residential community of Rancho Santa Fe. Development in Rancho Santa Fe is subject to the Rancho Santa Fe Protective Covenant (Covenant), which was adopted and recorded in 1928 and amended at various times over the years. Declaring that “Rancho Santa Fe is unusually attractive and valuable as a high class place of residence because of the rare quality of its landscape, trees and shrubs and the fine architecture and other improvements established by its property owners,” the Covenant recognizes the Rancho Santa Fe property owners’ desire of “preserving, continuing and maintaining the character of community and rare landscape features and of upholding the quality of all future architecture and improvements, and of restricting the use, height and bulk of buildings….” To that end, the Covenant not only contains express restrictions on such things as height requirements and building setbacks, but it also requires that property improvements and structures be approved by the Association with the written advice of the Rancho Santa Fe Art Jury (the Art Jury) “so as to insure a uniform and reasonably high standard of artistic result and attractiveness in exterior and physical appearance of said property and improvements.”^[1] The Covenant charges the Association and the Art Jury with power to interpret and enforce its provisions.

Article IV of the Covenant establishes three “Architecture Districts” within Rancho Santa Fe, and sets forth general requirements to which buildings or structures “shall” conform, “subject to the discretion of the Art Jury.” Article IV, section 28, entitled “General Requirements as to Architecture,” provides:

“To preserve the attractiveness of the said property and to prevent the erection, alteration or maintenance of buildings of undesirable and inharmonious design that would depreciate neighboring property, there are hereby established and defined for said property certain districts combining the usual architectural forms as follows: [¶] Type I—Architecture Districts. [¶] Type II—Architecture Districts. [¶] Type III—Architecture Districts…. No 284*284 building or structure shall be erected, constructed altered or maintained on said property or any part thereof, except in conformity with the regulations herein provided for the Type of Architecture District in which said building or structure is located…. [¶] (c) Materials, color and forms must be used honestly, actually expressing what they are, and not imitating other materials (such as tin, tile, wood and sheet metal, shamming stone, etc.) … In this hilly country, roofs will be much seen from above, and their form and color are important to the success and attractiveness of the property. The design of the building must be such as will, in the opinion of the Art Jury, be reasonably appropriate to its site and harmonize with its surroundings. The word `type’ is used rather than `style’ because attempts to reproduce `archaeological’ or `period’ styles shall be discouraged.

Dolan-King’s home was within the Type I Architecture District, described in the Covenant as “that distinctive type of architecture which for several decades has been successfully developing in California, deriving its chief inspiration directly or indirectly from Latin types, which developed under similar climatic conditions along the Mediterranean or at points in California, such as Monterey.”

Dolan-King was drawn to Rancho Santa Fe because she “wanted to live in the Covenant.” She was aware of the Covenant’s existence and had “read over it” before she agreed to purchase the house. Dolan-King testified she liked the house and was “really excited” by the fact it was in the Covenant. However, she desired to make some changes, and through architects Dolan-King submitted to the Art Jury plans for a new perimeter fence as well as “turret-style” additions to her living and family rooms. In place of the original three-rail corral-type fence on her property when she purchased it, she proposed a fence composed of stucco columns (pilasters) joined by horizontal wood beams. The proposed room addition structures were designed with large windows and French doors wrapped around their upper and lower levels to provide increased natural lighting as well as views north and east of her house.

The Art Jury denied Dolan-King’s applications. It found her proposed fence designs inconsistent with the Rancho Santa Fe Residential Design Guidelines (Guidelines),^[2] the desired rural community character and the existing neighborhood character. It suggested, as an “aesthetic alternative” in response to Dolan-King’s concern about containing her pets, placing wire mesh on the inside face of the corral fence. As for Dolan-King’s proposed room additions, the Art Jury found the designs “not in keeping with Paragraph 46” of the Covenant. The Art Jury stated the turret-style additions would be acceptable if Dolan-King decreased the proportion of window to stucco mass^[3] in a manner similar to examples presented to them by her architect, and suggested she reevaluate 285*285 that as well as the thickness of the walls and size and quantity of the windows.

Following unsuccessful mediations attended by Dolan-King’s attorney and architect,^[4] Dolan-King appealed the Art Jury’s decisions to the Board. The Covenant vests the Board with authority to modify the Art Jury’s decisions in cases where four-fifths of the Board finds the Art Jury’s decision “works an undue hardship” on the petitioner; modification of the Art Jury’s decision “will not tend unduly to lower the standards of attractiveness of the surrounding property or depreciate the neighborhood”; or there was “bias or prejudice on the part of one or more members of the Art Jury as to said decision or ruling.” The Board unanimously upheld the Art Jury’s decisions.

Dolan-King filed suit against the Association, its board of directors and the Art Jury seeking a judicial determination of the validity and enforceability of the Guidelines and the criteria and restrictions used by the Art Jury to reject her applications. She asked the court to resolve whether the Guidelines and various provisions of the Covenant were applied arbitrarily and unreasonably; whether the defendants’ land use planning was arbitrary, capricious and unreasonable; and whether the defendants exceeded their authority under the Covenant and breached their contractual and fiduciary duties to the Association’s members.

Following the presentation of evidence and written arguments, the court rendered its Intended Statement of Decision in Dolan-King’s favor. It found the Association and Art Jury’s decisions rejecting her applications “failed the rational relationship test and constituted an abuse of power.” Specifically, it concluded: (1) Board approval of Dolan-King’s applications would not violate Paragraph 46 of the Covenant, requiring that the Art Jury insure “a uniform and reasonably high standard of artistic result and attractiveness, in exterior and physical appearances” of the property and improvements; (2) Dolan-King’s fence plans should have been approved by the Art Jury and Board because (a) the proposed fence type was “consistent with the type of architecture required by the Covenant,” (b) the Board and Art Jury’s decisions were improperly based on Guidelines that were without “controlling effect,” and (c) the fence could be masked by appropriate landscaping; and (3) The Covenant required the Art Jury and Board to approve any fenestration plan “consistent with the required style of architecture that was not aesthetically displeasing,” and the turrets were not at all or barely visible from the street. After the Association unsuccessfully objected to the court’s Intended Statement of Decision, the court deemed the Intended Statement of Decision final and entered judgment for Dolan-King. It awarded Dolan-King attorney fees in the amount of $187,677.

DISCUSSION

I. Standard of Review

We first address the proper standard for our review of the court’s judgment. The Association contends we must act “independently of the trial court” and review the Board and Art Jury’s decisions “in the light most favorable to the decision to deny approval,” giving deference to the Board’s decision analogous to review of decisions of governmental agencies on petition for writ of mandate. It urges we follow the “rule of judicial deference” to community association board decisionmaking set out by the California Supreme Court in Nahrstedt v. Lakeside Village Condominium Assn.(1994) 8 Cal.4th 361, 374, 33 Cal.Rptr.2d 63, 878 P.2d 1275 (Nahrstedt) and more recently in Lamden v. La Jolla Shores Clubdominium Homeowners 286*286 Assn. (1999) 21 Cal.4th 249, 253, 87 Cal.Rptr.2d 237, 980 P.2d 940 (Lamden). Dolan-King relies upon Clark v. Rancho Santa Fe Association (1989) 216 Cal. App.3d 606, 619, 265 Cal.Rptr. 41 (Clark) to argue we must presume the court’s judgment to be correct, view the evidence in the light most favorable to the judgment and simply determine whether substantial evidence supports the trial court’s conclusions. However, as Dolan-King acknowledges, Clark differs from this case in that it involved a referee’s review of the Association’s denial of a subdivision proposal under a petition for writ of mandamus. (Id. at p. 613, 265 Cal.Rptr. 41.) The sole issue before the referee inClark was whether substantial evidence supported the Association and Art Jury’s subjective conclusions about the adequacy of the proposal, not, as here, whether the Association acted under enforceable restrictions, beyond its authority or in a discriminatory manner. (Id. at p. 615, 265 Cal.Rptr. 41.) It is settled that in reviewing a trial court’s ruling on a writ of mandate (Code Civ. Proc., § 1085), the appellate court is “ordinarily confined to an inquiry as to whether the findings and judgment of the trial court are supported by substantial evidence. [Citation.]” (Saathoff v. City of San Diego (1995) 35 Cal.App.4th 697, 700, 41 Cal.Rptr.2d 352.) The standard does not apply where the facts below are undisputed. (Ibid.)

Dolan-King’s complaint was for declaratory relief. Whether a determination is proper in an action for declaratory relief is a matter within the trial court’s discretion and the court’s decision to grant or deny relief will not be disturbed on appeal unless it is clearly shown its discretion was abused. (Hannula v. Hacienda Homes, Inc. (1949) 34 Cal.2d 442, 448, 211 P.2d 302.) Here, however, the decisive underlying facts, primarily Dolan-King’s proposed designs and the Art Jury and Board’s actions, are undisputed. In such a case, in reviewing the propriety of the trial court’s decision, we are confronted with questions of law. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799, 35 Cal.Rptr.2d 418, 883 P.2d 960; Caloca v. County of San Diego (1999) 72 Cal.App.4th 1209, 1217, 85 Cal. Rptr.2d 660.) Moreover, to the extent our review of the court’s declaratory judgment involves an interpretation of the Covenant’s provisions, that too is a question of law we address de novo. (City of El Cajon v. El Cajon Police Officers’ Assn. (1996) 49 Cal.App.4th 64, 71, 56 Cal.Rptr.2d 723; Clark, supra, 216 Cal.App.3d at p. 618-619, 265 Cal.Rptr. 41 [resolving as a matter of law whether the language of the Covenant permits the Association and Art Jury to use subjective criteria in judging property owners’ applications to improve their property].)

II. Enforceability of the Provisions of the Covenant and Residential Design Guidelines

A. The Covenant’s Provisions

The court framed the issues at trial as follows: “1. What type of perimeter fence can be legally required to be in compliance with the requirements of the [Covenant] and 2. What type of fenestration … on the two proposed turret additions can be legally required to be in compliance with the requirements of the Covenant?” Although it acknowledged Dolan-King sought a declaration of the validity of the criteria and Guidelines applied by the Art Jury and Board, the court did not directly address the enforceability of the Covenant’s provisions or the Guidelines relied upon by those entities in denying her applications. The determination was a necessary prerequisite to decide whether the Board exceeded its authority and acted reasonably, and the court erred by ignoring the issue. However, on this record, we may address the reasonableness of the relevant provisions as a matter of law. (See e.g. Liebler v. Point Loma Tennis Club (1995) 40 Cal. App.4th 1600, 47 Cal.Rptr.2d 783.)

287*287 Interpreting and applying the language of Civil Code section 1354,^[5] the California Supreme Court has made it clear that restrictions on the use of property contained in covenants recorded with the county recorder are “presumed to be reasonable and will be enforced uniformly against all residents of the common interest development unless the restriction is arbitrary, imposes burdens on the use of lands it affects that substantially outweigh the restriction’s benefits to the development’s residents or violates a fundamental public policy.” (Nahrstedt, supra,8 Cal.4th at p. 386, 33 Cal.Rptr.2d 63, 878 P.2d 1275; Lamden, supra., 21 Cal.4th at p. 263, 87 Cal.Rptr.2d 237, 980 P.2d 940.) Such deference to the originating covenants, conditions and restrictions “`protects the general expectations of condominium owners “that restrictions in place at the time they purchase their units will be enforceable.”‘” (Lamden, supra, 21 Cal.4th at p. 264, 87 Cal.Rptr.2d 237, 980 P.2d 940.) Restrictions are evaluated for reasonableness in light of “the restriction’s effect on the project as a whole,” not from the perspective of the individual homeowner. (Nahrstedt, supra, 8 Cal.4th 361, 386, 33 Cal.Rptr.2d 63, 878 P.2d 1275; Liebler v. Point Loma Tennis Club, supra 40 Cal.App.4th at pp. 1606, 1611, 47 Cal. Rptr.2d 783.) Accordingly, courts do not conduct a case-by-case analysis of the restrictions to determine the effect on an individual homeowner; we must consider the reasonableness of the restrictions by looking at the goals and concerns of the entire development.

In her briefs before the trial court, Dolan-King did not challenge the Covenant’s broad governing provisions expressing an intent to preserve the value and attractiveness of Rancho Santa Fe, and giving the Art Jury and Association authority and duty to enforce and interpret the Covenant’s provisions. Rather, she contended the Guidelines followed by the Art Jury were not contained in the Covenant, and that Paragraphs 46 and 47 of the Covenant did not empower the Art Jury to deny her applications, but only enabled it to exercise discretion in approving “color,” “texture and finish of plaster or exterior” and “roofing materials” under other provisions of the Covenant.

We reject Dolan-King’s narrow interpretation of the Covenant. This court held inClark, supra, 216 Cal.App.3d 606, 265 Cal.Rptr. 41, that reading the Covenant as a whole, the Art Jury and Board are empowered to render judgments on property improvement applications based upon subjective as well as objective criteria. (Id. at pp. 618-619, 265 Cal.Rptr. 41.) We noted the Covenant’s stated goal of a “`uniform and reasonably high standard of artistic result and attractiveness, in exterior and physical appearance of said property and improvements'” and its “purpose … as protecting the attractiveness and value of the area as `a high class place of residence.'” (Id. at p. 618, 265 Cal.Rptr. 41.) Our decision in Clark recognized that the Covenant expressly grants the Association and Art Jury broad authority to apply standards that are inherently subjective and by their nature cannot be measured or quantified: “Necessarily, any such evaluations of a property owner’s proposal for compatibility with these desired environmental qualities must be done on a subjective basis, as `attractiveness’ and `artistry’ are, like beauty, well within the eye of the beholder. Such qualities have never been measurable or quantifiable.” (Id. at p. 619, 265 Cal.Rptr. 41, fn. omitted.)

Implicit in our holding in Clark is that the Covenant’s grant of authority to the Art Jury to make subjective aesthetic judgments is not wholly arbitrary. A restriction 288*288 is arbitrary when it bears “no rational relationship to the protection, preservation, operation or purpose of the affected land.” (Nahrstedt, supra, 8 Cal.4th at p. 381, 33 Cal.Rptr.2d 63, 878 P.2d 1275.) It is clear even from Dolan-King’s own briefs and testimony that one of the desirable aspects of living “in the Covenant” is the concern and control exercised by the Association over style and presentation of the homes as well as the surrounding properties. Maintaining a consistent and harmonious neighborhood character, one that is architecturally and artistically pleasing, confers a benefit on the homeowners by maintaining the value of their properties. Given the Covenant’s unambiguous intent to ensure relatively consistent architectural styles and a valuable, aesthetically appealing, high quality neighborhood for the collective benefit of the Rancho Santa Fe homeowners, we conclude the Covenant’s grant of broad authority and discretion in the Art Jury to apply subjective aesthetic criteria is reasonable. Nor do we find the Covenant’s provisions violative of fundamental public policy or disproportionately burdensome. (Id. at p. 382, 33 Cal.Rptr.2d 63, 878 P.2d 1275.) Thus, its general restrictive provisions, reviewed and agreed to by Dolan-King before she purchased her property, are enforceable equitable servitudes. California and many other jurisdictions have long upheld such general covenants vesting broad discretion in homeowners associations or boards to grant or withhold consent to construction. (Pahs Verdes Homes Assn. v. Rodman (1986) 182 Cal. App.3d 324, 328, 227 Cal.Rptr. 81, citing Hannula v. Hacienda Homes, Inc., supra,34 Cal.2d 442, 211 P.2d 302; Riss v. Angel (1997) 131 Wash.2d 612, 934 P.2d 669, 677 [citing numerous cases].) This is so even when the covenants contain such broad, general approval standards as “`conformity and harmony of external design and general quality with the existing standards of the neighborhood'” and “`location of the building with respect to topography and finished ground elevations'” as long as the covenants clearly granted such discretion. (Riss v. Angel, supra, 934 P.2d at p. 677, citing Winslette v. Keeler (1964) 220 Ga. 100, 137 S.E.2d 288, 289-290 [the only limitation on a grantor’s right to reject plans under such standards is that the right must be exercised reasonably and in good faith].)

B. The Guidelines

We view the Guidelines differently. There is no evidence Dolan-King had notice of the unrecorded Guidelines at the time she purchased her property.^[6] Thus, we do not, nor does the Association ask us to, treat them as equitable servitudes. (Nahrstedt, supra, 8 Cal.4th at p. 375, 33 Cal.Rptr.2d 63, 878 P.2d 1275[“Restrictions that do not meet the requirements of covenants running with the land may be enforceable as equitable servitudes provided the person bound by the restrictions had notice of their existence.”].) In Lamden, supra, the court noted a distinction between originating covenants and “subsequently promulgated” unrecorded use restrictions, stating the factors justifying deference to founding covenants are not necessarily present when a court considers subsequent unrecorded community association board decisions. (Lamden, supra, 21 Cal.4th at p. 264, 87 Cal.Rptr.2d 237, 980 P.2d 940.) In Nahrstedt, the court suggested that such unrecorded restrictions are not accorded a presumption of reasonableness, but are viewed under a straight reasonableness test “so as to `somewhat fetter the discretion of the board of directors.'” (Nahrstedt, supra, 8 Cal.4th at p. 376, 33 Cal.Rptr.2d 63, 878 P.2d 1275, quoting Hidden Harbour Estates v. Basso(Fla.Dist.Ct.App.1981) 393 So.2d 637, 640.) We understand this distinction to primarily 289*289 impact the respective burdens of proof at trial.

The Guidelines themselves do not purport to be strict restrictions on improvements or land use. They are intended to “disseminate[ ] the site and design standards which the community holds as necessary to preserve community character; articulate[ ] the policies and goals by which the Association judges and regulates land use; and give[ ] a clear indication of those site and design principles which increase the probability of the issuance of Association permits.” They state: “These are general guidelines, and the Art Jury and Association Board may exercise the full breadth of their discretion in considering any land use proposal. The Association has the express right under the Protective Covenant to evaluate land use and building applications by standards other than those contained herein.” As a further indication that the Guidelines themselves are not intended as regulations, the Guidelines separately list in an appendix the “regulations on building and land improvement” adopted by the Association.

While we recognize that the Guidelines are not equitable servitudes, we find nothing inherently unreasonable about the Guidelines in and of themselves. They are the Association’s attempt to give property owners guidance, by way of detailed examples and explanation, on the criteria used by the Art Jury and Board in reviewing proposed improvements and exercising their broad discretion under the Covenant. The Board’s desire to give property owners more concrete examples of how the Art Jury is likely to exercise its broad discretion is entirely legitimate and fair, even though the Guidelines are not binding restrictions. That Dolan-King lacked notice of the Guidelines does not affect their reasonableness, but may influence our determination of whether the Board fairly and reasonably relied upon them to deny Dolan-King’s fence application, which we address below.

III. Validity of the Art Jury and Board’s Exercise of Discretion in Denying Dolan-King’s Applications

The Association contends the court erred by failing to exercise deference to the Board’s decision making authority under Lamden, supra, 21 Cal.4th at p. 265, 87 Cal.Rptr.2d 237, 980 P.2d 940 and in substituting its own judgment based upon its own evaluation of Dolan-King’s applications, including its conclusion Dolan-King’s room additions should have been approved because they were not “aesthetically displeasing.” According to the Association, as long as the record demonstrates a good faith and rational effort by the Board to further the purpose of the development, the court must uphold its decision. Dolan-King, on the other hand, argues the Board’s decisions are not entitled to deference under Lamden because the record shows they were made without reasonable investigation, in bad faith, and in disregard of the best interests of the community association and its members.

We agree the court failed to apply the proper deferential standard to test the Board’s exercise of discretion. In Lamden, the California Supreme Court held that courts should defer to the discretionary decisions of duly constituted community associations in exercising their obligations to maintain and repair common areas, where those decisions are made within the scope of their authority under relevant statutes, covenants, and restrictions, upon reasonable investigation, in good faith, and in a manner in the best interests of the Association and its members. (Lamden, supra, 21 Cal.4th at p. 265, 87 Cal.Rptr.2d 237, 980 P.2d 940.) The court in Lamdenrelied heavily upon its prior decision in Nahrstedt, supra, which addressed the standards to be applied in enforcing recorded use restrictions that satisfy the requirements of equitable servitudes. In Nahrstedt, the court declared that an association must make findings of use restriction violations in “good faith, not in an arbitrary or capricious 290*290 manner.” (Nahrstedt, supra, 8 Cal.4th at p. 383, 33 Cal.Rptr.2d 63, 878 P.2d 1275.) It held: “Generally, courts will uphold decisions made by the governing board of an owner’s association so long as they represent good faith efforts to further the purposes of the common interest development, are consistent with the development’s governing documents, and comply with public policy.” (Id. at p. 374, 33 Cal.Rptr.2d 63, 878 P.2d 1275; see also Cohen v. Kite Hill Community Assn. (1983) 142 Cal.App.3d 642, 650, 191 Cal.Rptr. 209 [“It is a settled rule of law that homeowners’ associations must exercise their authority to approve or disapprove an individual homeowner’s construction or improvement plans in conformity with the declaration of covenants and restrictions, and in good faith.”].

Applying those standards here, it is clear that while the Covenant’s grant of discretionary decision making authority to the Board and Art Jury is broad, it is not unbridled. Lamden‘s rule of conditional judicial deference places limits upon how the Art Jury and Board may exercise their discretion in approving or rejecting improvement plans based on their subjective aesthetic judgment. Under those standards, where the record indicates the Art Jury and Board acted within the authority granted to it by the Covenant, pursuant to a reasonable investigation, in the best interests of the community and not in an arbitrary manner, we will respect and uphold their decisions. Having sought a declaration that the Art Jury and Board imposed restrictions unreasonably and arbitrarily, it was Dolan-King’s burden at trial to make that showing before the trial court. (Merkley v. Merkley (1939) 12 Cal.2d 543, 547, 86 P.2d 89 [the plaintiff in a declaratory relief action has the burden to show the conditions exist that will justify the court in exercising its discretion to grant the relief sought].)

A. The Room Addition Proposal

Exercising its right to ensure a “uniform and reasonably high standard of artistic result and attractiveness” under Paragraph 46 of the Covenant, the Art Jury denied Dolan-King’s turret-style room addition proposals on the ground they were designed with an overabundance of glass (door and window). At trial, an Art Jury member testified the Art Jury had visited Dolan-King’s property, viewed the rear of her house, and compared the glass-to-stucco ratio of the rest of the house with that of the proposed additions. Initially, the Art Jury expressed dislike for the form (the turret shape) of the additions in relation to the rest of the house, but after considering Dolan-King’s architect’s presentation of Spanish Colonial Revival period architecture it eventually conceded the round turrets would be acceptable if the window-to-stucco mass were changed. The Art Jury’s ultimate decision was made after it reviewed her architect’s exhibits, discussed the proportion of stucco to window, the general architectural styles and compared the general Santa Barbara architectural style to Dolan-King’s plans. It is clear that in the Art Jury’s opinion, the proposed addition designs did not meet its aesthetic standards because the fenestration did not “harmonize” with the remainder of the residence, nor was it consistent with the style of architecture promoted by Dolan-King’s architect. The Art Jury communicated to Dolan-King their view that her additions would be acceptable if the designs were altered to decrease the window and door mass.

The Art Jury’s decision to reject Dolan-King’s room addition proposal was well within the scope of its authority under the Covenant, and, based upon its investigation and stated reasoning, was a reasonable and good faith effort to maintain architectural consistency with the remainder of her home as well as the neighborhood. Dolan-King did not meet her burden to show otherwise. While Dolan-King pointed 291*291 out several commercial buildings and homes with turret-shaped rooms in Rancho Santa Fe,^[7] in our view they do not reflect the kind of inconsistency between the addition and the original structure as the Art Jury noted with regard to Dolan-King’s proposals.

The Board’s action upholding the Art Jury’s decision was also well within its discretion and authority. The Board is empowered to rely upon the Art Jury’s recommendation, which was based upon the Art Jury’s visits to the Dolan-King residence and discussions with her architect. Although Dolan-King faults the Board for failing to view her residence or otherwise “investigate” the matter, nothing in the Covenant requires the Board to conduct its own independent investigation.^[8] We conclude the Board’s decision rejecting Dolan-King’s proposed additions was entitled to deference and the court, relying upon an overly restrictive interpretation of the Covenant, abused its discretion in declaring it in excess of the Board’s authority and not rationally related to the Association’s purposes.

B. The Fence Proposal

The court reached the following conclusions regarding Dolan-King’s fence application: It found the parties did not dispute Dolan-King’s home was of “Spanish Colonial Revival,” which was an acceptable type of Type I architecture under the Covenant. It noted the Covenant was silent on the type of perimeter fence appropriate for the Type I architectural district, but drew an inference that the Covenant required such a fence be consistent with the Santa Barbara/Monterey/Spanish Colonial Revival type of architecture. The court ruled that, from an aesthetic standpoint, the fence should be compatible with the architectural style of Dolan-King’s home and other existing fences. Moreover, the court ruled there were inconsistencies between the Covenant’s requirements and the Guidelines, but noted the parties agreed the Guidelines were not restrictive covenants and concluded the Covenant’s provisions controlled. It acknowledged Dolan-King’s architect’s testimony that her proposed fence design was beautiful from an artistic standpoint, and “consistent with the Spanish Colonial Revival type architecture required” by the Covenant. The architect testified the pasture-rail type fence, on the other hand, was inconsistent with the Covenant. Based upon these findings and conclusions, the court declared Dolan-King’s fence application should have been approved.

The court’s ruling was based upon an overly narrow interpretation of both the Covenant’s grant of authority to the Art Jury and Board and its scope of permissible architectural types for improvements in Rancho Santa Fe. As we have explained, the Art Jury and Board acted well within their power to render subjective, aesthetic judgments about Dolan-King’s fence design. The Art Jury had the discretion to base its decision on a finding that a particular improvement lacked “harmony” 292*292 with the subject property and its surrounding neighborhood. The court found the Guidelines inconsistent with the Covenant’s provisions relating to architectural type, specifically, the court decided the Guidelines’ stated preference for corral- or pasture-rail-type fences was contrary to the Spanish Colonial Revival type of architecture mentioned in the Covenant. We do not interpret the Covenant or the Guidelines so literally or restrictively. The Covenant does not mandate the use of structures falling within that particular style of architecture, nor does it purport to define or limit the design of perimeter walls or fences. Indeed, as the Association points out, the Covenant is not at all precise in its description of permissible architectural types. It refers to a distinctive type of architecture that derives its “chief inspiration” “directly or indirectly” from Spanish types found “along the Mediterranean or at points in California, such as Monterey.” The Covenant plainly rejects strict adherence to architectural styles. It provides: “The word `type’ is used rather than `style’ because attempts to reproduce `archaeological’ or `period’ styles shall be discouraged.” The Covenant’s designation of architectural types is not only imprecise, but application of the architectural restriction is further “subject to the discretion of the Art Jury.”

The relevant inquiry, whether the Art Jury and Board properly exercised their broad discretion, was not directly addressed by the court. The court’s findings and conclusions did not establish that either the Art Jury or Board acted arbitrarily, without reasonable investigation or in bad faith in denying Dolan-King’s fence application. For example, the court made no finding as to the “rural character” or predominance of fence type within Dolan-King’s immediate neighborhood. It did not determine whether other similarly designed homes had pasture-rail fences, or fences with design aspects similar to those proposed by Dolan-King. It did not find that other homes having wrought iron or stucco fences were in neighborhoods with predominantly pasture-rail-type fences.

Nor could the court have made these findings on the record before it. At trial, the President of the Board testified that nearly all of the fencing in Dolan-King’s neighborhood was pasture-rail-type fencing. A member of the Art Jury explained that one of the bases for the Art Jury’s denial of her fence was that its composition, namely the combination of wrought iron and pilasters, was “too urban” and too formal in relation to the character of the neighborhood. She recalled the type of fences in Dolan-King’s neighborhood was white pasture-rail, and there were no other fences with pilasters and wrought iron in the neighborhood. Dolan-King’s architect conceded there was “quite a bit” of pasture-rail fencing in Rancho Santa Fe, and that style of fencing was consistent with the California ranch style of architecture as well as the Rancho Santa Fe community. While Dolan-King demonstrated homes in Rancho Santa Fe having a mix of fences and walls ranging from solid stucco, wrought iron rail, combined brick and wrought iron, and layered stone, the mere existence of varying fence styles within Rancho Santa Fe does not establish arbitrary action under the Covenant, which contains no specific design criteria or limitations for perimeter walls and fences. Dolan-King did not demonstrate that those homes with more formal fence styles were surrounded by others having pasture-rail fences or no fences at all.^[9] When 293*293 confronted with videotape of these differing walls, Dolan-King’s architect was unable to state where they were located in the community or describe the nature of the property they were located upon. In fact, he pointed out his opinions about the various fences were not given with a view towards the Rancho Santa Fe community as a whole.

We recognize the law requiring evenhanded application of use restrictions creates some tension with the discretionary authority granted to the Art Jury and Board. While aesthetic considerations have their place in the Covenant and there are no absolute standards to guide the Art Jury’s judgment and taste, we must point out if the evidence had showed the perimeter fences and walls within Dolan-King’s immediate neighborhood (in the Covenant’s jurisdiction) lacked consistency, Dolan-King’s proposed fence design would not be inappropriate because it would not be out of harmony with them. (See e.g. Town & Country Estates Association v. Slater(Mont. 1987) 227 Mont. 489, 740 P.2d 668, 669 [design review committee was vested with authority to reject house plans based upon standards of “harmony of external design, location and relation to surrounding structures and topography” which standards were not ambiguous per se, but where the development contained a “cacophony” of house styles, the committee’s disapproval of the property owner’s plans was unenforceable]; Ashelford v. Baltrusaitis (1980) 600 S.W.2d 581, 588[association’s rejection of home building plans was unreasonable in light of evidence that other homes in development had exposed foundations and roof pitch similar to the prospective home builders; “[w]hat has been considered reasonable for other lot owners in the subdivision cannot be unreasonable when proposed by defendants”].) On the record before us, however, we cannot find Dolan-King proved she was subjected to the Board’s selective and arbitrary exercise of discretion with respect to her fence proposal.

IV. Attorney Fee Award

The Association appealed the court’s order granting Dolan-King an award of attorney fees under Civil Code section 1354, subdivision (f).^[10] In light of our disposition, we reverse the court’s order granting Dolan-King’s motion for attorney fees and remand the matter to the superior court to determine entitlement to attorney fees under Civil Code section 1354, subdivision (f). (Heather Farms Homeowners Assn. v. Robinson (1994) 21 Cal.App.4th 1568, 26 Cal.Rptr.2d 758.)

DISPOSITION

The judgment and order awarding attorney fees are reversed and the matter remanded for the superior court to enter judgment for the Association and determine entitlement to attorney fees under Civil Code section 1354, subdivision (f). The Association is to recover its costs on appeal.

KREMER, P.J, and HUFFMAN, J., concur.

[*] Mosk, J., dissented.

[1] Article III of the Covenant sets forth the Art Jury’s duties and functions, which include approval of land development and subdivisions, “examination, correction, approval or rejection” of building plans and specifications, and approval of works of art. Specifically, paragraph 46, section 1, provides: “No part of the said property and/or of any property at any time within the jurisdiction of the Art Jury or of the Association shall be subdivided, laid out or improved by buildings, or structures, or its physical contours altered or changed, except in preparing land for orchard or farm use, except with the approval of the Association with the written advice of the Art Jury so as to insure a uniform and reasonably high standard of artistic result and attractiveness in exterior and physical appearance of said property and improvements.” The Association’s bylaws make clear that the Board’s approval of subdivisions and structures is invalid unless it has first received the written advice of the Art Jury.

[2] The Association’s Board of Directors adopted and published the Guidelines in June 1991 with a stated goal to “produce a Board-Adopted document, for use by builders, members, decisionmakers and staff, which will guide residential development so that future permit approvals will work to maintain the traditional character of Rancho Santa Fe….” The Guidelines contain numerous specific examples and pictures of design principles that “increase the probability” of permit approval. For example, the Guidelines state that “appropriate fence types are: two or three rail pasture style post and rail, peeler log and other pasture types which reflect the rural character of the community.” The Board acknowledged to homeowners that the Guidelines were not controlling, and that the Association had the right under the Covenant to evaluate land use and building applications by standards other than those contained in the Guidelines. The parties apparently stipulated the provisions of the Covenant controlled over those contained in the Guidelines.

[3] The arrangement, positioning and design of windows and doors in a building is referred to as “fenestration.” (Merriam-Webster’s 10th Collegiate Diet. (1997) p. 429.)

[4] Dolan-King’s attorney attended the mediation over the fence design, at which he presented a revised design containing vertical wrought iron pickets and railing. The Art Jury rejected the revised proposal as too similar to the original proposal.

[5] Civil Code section 1354, subdivision (a) provides: “The covenants and restrictions in the declaration shall be enforceable equitable servitudes, unless unreasonable, and shall inure to the benefit of and bind all owners of separate interests in the development. Unless the declaration states otherwise, these servitudes may be enforced by any owner of a separate interest or by the association, or by both.”

[6] Dolan-King testified she was not aware of the existence of the Guidelines until after she submitted her plans to the Art Jury and her attorney purchased a copy of the Guidelines during the mediation over her fence.

[7] The court made no fact findings with regard to these buildings, to which we would defer.

[8] Section III of the Covenant address procedures and standards for appeals of the Art Jury’s decisions to the Association’s Board. It provides that at the appeal hearing, “the appellant and his witnesses shall be fully heard, the decision or ruling of the Art Jury appealed from shall be read and the members of the Art Jury and their officers shall be heard as to the reasons for making the decision or ruling appealed from…. After full hearing as aforesaid and due consideration the Board … shall have the power by affirmative vote of at least four-fifths of the entire membership of the said directors to modify said act, decision and/or ruling of the Art Jury; provided that said modification shall only be ordered in a case where the directors find that such decision or ruling of the Art Jury works an undue hardship upon said petitioner or that a modification of the decision or ruling of the Art Jury will not tend unduly to lower the standards of attractiveness of the surrounding property or depreciate the neighborhood, or that there was bias or prejudice on the part of one or more members of the Art Jury as to said decision or ruling.”

[9] Dolan-King did present evidence that in 1996, the Board approved a solid stucco wall for another property owner whose property bordered the edge of Rancho Santa Fe. That owner asked the Art Jury to approve his plans because his property was adjacent to a high traffic road and he and his family desired privacy and relief from traffic light and noise. But there was no evidence as to the character of that owner’s surrounding neighborhood or any other evidence that would tend to show arbitrariness, such as similarity between that owner’s home design and Dolan-King’s. She admits in her brief that the solid stucco wall north and adjacent to her property is not on land located within the Covenant’s jurisdiction.

[10] That section provides: “In any actions specified in subdivision (a) to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs. Upon motion by any party for attorney’s fees and costs to be awarded to the prevailing party in these actions, the court, in determining the amount of the award, may consider a party’s refusal to participate in alternative dispute resolution prior to the filing of the action.” (Civ.Code, § 1354, subd. (f).)

Keywords: Architectural Review

Palos Verdes Home Owners Association v. Rodman

182 Cal.App.3d 324 (1986)

325*325 COUNSEL

Stuart W. Willis for Defendants and Appellants.

Sidney F. Croft for Plaintiff and Respondent.

Summary by Mary M. Howell, Esq.:

Installation of solar system after denial of application by association was a violation of restrictive covenants.  Association’s guidelines for solar installations held to satisfy the requirements of Civil Code §714.

**End Summary**

OPINION

HASTINGS, J.

Defendant/appellant Stacey Rodman (Rodman) resides on the Palos Verdes Peninsula in an area governed by conditions, covenants and restrictions (CC&Rs) recorded by plaintiff/respondent Palos Verdes 326*326 Homes Association (the Association) on July 15, 1923. The CC&Rs include a provision which requires prior approval by the Association of plans and specifications for any works of improvement to be done on any of the “covered” properties.^[1]

Defendant/appellant Servamatic Solar Systems (Servamatic) contracted with Rodman to install a passive solar water hearing unit on the roof of the Rodman home. On March 20, 1983, Servamatic sought approval from the Association for this installation; approval was denied. On July 26, 1983, when the Association discovered that Servamatic had installed the system, it sent a letter to Rodman notifying him that his property was in a condition of noncompliance with the CC&Rs and enclosed a copy of its solar unit guidelines.^[2] On August 15, 1983, the Association received a letter from Servamatic informing it that Servamatic had agreed to indemnify Rodman against all legal expenses incurred in defending his rights to solarize his home. Servamatic went on to cite portions of Government Code section 65850.5 and Civil Code section 714,^[3] claiming these statutes precluded the Association from interfering with installation of solar energy systems.

327*327 On October 5, 1983, the Association filed its complaint for injunctive and declaratory relief against Rodman and Servamatic. Rodman answered; Servamatic answered and cross-complained. Its cross-complaint stated causes of action for interference with business and for injunctive and declaratory relief. All parties sought a judicial determination of their respective rights and obligations under section 714, quoted, ante, in footnote 3. On November 1, 1984, all parties stipulated to a bifurcation of the issues of declaratory relief of the complaint and cross-complaint from the issues of injunction and damages.

The issues of declaratory relief were tried before the court on January 23, 1985. Judgment for the Association was filed on February 14, 1985; it provided “… 1. That defendants are enjoined from maintaining the solar units on the property … [¶] 2. That defendants are ordered to comply with requirements of the Art Jury of the PalosVerdes Homes Association within ninety (90) days of entry of judgment herein. [¶] 3. If defendants do not comply with the requirements of the Art Jury of the PalosVerdes Homes Association within ninety (90) days of entry of judgment herein they are ordered to remove the solar units … [¶] 4. The restrictions of the Palos VerdesHomes Association on solar energy systems installed by defendants are reasonable and met the standards set forth in California Civil Code, Section 714. [¶] 5. Plaintiff,Palos Verdes Homes Association, have and recover its costs in the amount of $92.00 from defendants.”

Rodman and Servamatic (both as appellants) have joined in the appeal from this judgment. They urge us to find that as a matter of law the Association’s solar unit guidelines are in violation of the spirit and intent of section 714. Specifically, appellants argue that these guidelines “effectively prohibit or restrict” installation of solar energy units in that they significantly increase the cost of a system, decrease a system’s efficiency and do not allow for “an alternative system of comparable cost and efficiency,” all in contravention of the policy stated in section 714, “… to promote and encourage the use of solar energy systems and to remove obstacles….” In support, appellants cite the testimony regarding the three types of solar 328*328 systems allowed by the California State Energy Commission: active (or flat plate); passive (Integral Collector System (ICS)); and thermosyphon (a combination of both). Appellants assert that the guidelines allow installation of active systems, but effectively preclude installation of the ICS, the only type appellants install, because it sits 18 inches atop the roof, is painted black, and looks like an up-side-down bathtub; and that the guidelines would require the ICS to be set into the roof (guideline 4), adding between $1,400-$1,800 to the cost of installation.

The Association counters that the pertinent and controlling language of section 714 is that which finds “reasonable restrictions” to include those “… which allow for an alternative system of comparable cost and efficiency.” (1a) The Association argues that the solar unit guidelines do not prohibit all solar units but are formulated to promote the installation of solar units which are comparable in costs and aesthetically acceptable. We concur.

(2) The right to enforce covenants that require approval of construction has long been recognized in California. (Hannula v. Hacienda Homes (1949) 34 Cal.2d 442, 444-445 [211 P.2d 302, 19 A.L.R.2d 1268].) (3) The issue here is whether the Association’s Guidelines are a “reasonable restriction” on the installation of solar units, as required by section 714. This is a question of fact to be determined by the trier of fact. Its conclusion will not be disturbed unless unsupported by substantial evidence. (Bowers v. Bernard (1984) 150 Cal. App.3d 870, 873-874 [197 Cal. Rptr. 925].)

(1b) The evidence presented at the court trial included testimony by William Nelson Rowley, Ph.D., in mechanical engineering. Dr. Rowley, an engineer for 30 years and member of numerous professional organizations, has been designing and selling solar systems since 1974, designing and/or installing more than 250 systems. In October 1983, he was hired as a consultant to the Association to study and determine whether the Association’s solar guidelines complied with section 714. His study included a comparison of the costs of various solar systems, including appellant’s; their positive and/or negative aspects; capacity; weight; insulation; tank temperature design; efficiency; output and warranties. Based on his study comparing 26 systems installed on the Palos Verdes Peninsula with appellant’s ICS, he concluded the solar units permitted by the Association guidelines were comparable to the ICS in performance and costs.

Given this evidence and the fact that appellant’s own witness agreed that the various solar systems discussed by Dr. Rowley were comparable, we cannot say as a matter of law that the trial court erred. The evidence before 329*329 the court, partially summarized above, clearly supports the judgment rendered.

The judgment is affirmed.

Ashby, Acting P.J., and Eagleson, J., concurred.

[1] When an owner seeks to install a solar unit, he or she must comply with the requirements of the solar unit guidelines formulated by the Association’s Art Jury.

[2] These guidelines provide as follows: “1. Solar Units not on the roof should be maintained a minimum of 5′ from property line and concealed from the neighboring view, and a fence or wall of sufficient height to accomplish same may be appropriate. [¶] 2. Solar Units on a roof should be within the wall line of the structure. However, the Art Jury may require more roof area between solar unit and roof edge if the roof overhang is minimal. [¶] 3. All aluminum trim should be bronze anodized or otherwise color treated. [¶] 4. Solar Units should be in or below the plane of roofing material. [¶] 5. Solar Unit should be constructed of rigid materials. (Units may not be of flexible materials). [¶] 6. All plumbing lines should be concealed and the method of installation shown and detailed. [¶] 7. Panel material should be dark in color. [¶] 8. Sample of the proposed solar unit should be submitted with application. [¶] 9. Professionally drawn construction details which apply to specific installations should be provided. They should be drawn to scale and should clearly show all elevations, assembly, the attachment to the roof structure and proposed location on the lot or building. [¶] 10. Calculations should be provided verifying the number and/or area of panels required. [¶] 11. Photographs should be submitted showing the location of the proposed solar units and their visibility from neighboring structures, street or streets. [¶] 12. A cover plate or the glazing should be either transparent or white to reduce the reflectance of light. Cover material, if flammable, should be self extinguishing. [¶] The Art Jury may ask for alternative combinations in smaller groupings when large areas of grouped solar panels are found not to be aesthetically satisfactory.”

[3] Government Code section 65850.5, in pertinent part, provides: “The legislative body of any city or county shall not enact an ordinance which has the effect of prohibiting or of unreasonably restricting the use of solar energy systems other than for the preservation or protection of the public health or safety. This prohibition shall be applicable to charter cities … [¶] This section shall not apply to ordinances which impose reasonable restrictions on solar energy systems. However, it is the policy of the state to promote and encourage the use of solar energy systems and to remove obstacles thereto. Accordingly, reasonable restrictions on a solar energy system are those restrictions which do not significantly increase the cost of the system or significantly decrease its efficiency, or which allow for an alternative system of comparable cost and efficiency….”

Civil Code section 714, in pertinent part, provides: “Any covenant, restriction, or condition contained in any deed, contract, security instrument, or other instrument affecting the transfer or sale of, or any interest in, real property which effectively prohibits or restricts the installation or use of a solar energy system is void and unenforceable. [¶] This section shall not apply to provisions which impose reasonable restrictions on solar energy systems. However, it is the policy of the state to promote and encourage the use of solar energy systems and to remove obstacles thereto. Accordingly, reasonable restrictions on a solar energy system are those restrictions which do not significantly increase the cost of the system or significantly decrease its efficiency, or which allow for an alternative system of comparable cost and efficiency….”

All subsequent references are to the Civil Code.

Keywords: Solar

Pacifica Homeowners Association v. Wesley Palms

178 Cal.App.3d 1147 (1986)

1150*1150 COUNSEL

A. Lee Estep and Estep, Williams & Gordon for Plaintiff and Appellant.

Kadison, Pfaelzer, Woodard, Quinn & Rossi and Laurence J. Hutt for Defendants and Respondents.

Summary by Mary M. Howell, Esq.:

Association unsuccessfully attempts to enforce a view restriction imposed by a conditional use permit on property adjacent to the association.   Court confirms as well there is no common law right to an unobstructed view.

**End Summary**

OPINION

STANIFORTH, Acting P.J.

Pacifica Homeowners’ Association (Association) appeals the sustaining of a demurrer and the dismissal of its action seeking to enjoin the Wesley Palms Retirement Community and Pacific Homes, Inc. (collectively Wesley Palms) from allowing trees on its property to grow higher than its five-story building.

FACTS

The Association’s members own single-family residences in a development, Pacifica Homes (Pacifica), located uphill from Wesley Palms on Mount Soledad in the City of San Diego (City). These residences have views of the ocean, Mission Bay and the city. Covenants contained in the homeowners’ deeds protect these views from future obstruction.

Wesley Palms was granted a conditional use permit in 1958 to operate a retirement hotel on its 40-acre tract of land. In the findings of fact supporting issuance of the permit, the City, inter alia, stated: “That such use under the circumstances of the particular case will not be detrimental to health, safety or general welfare of persons residing or working in the vicinity, or injurious to property or improvements (existing or future) in the vicinity because a capable architect has designed attractive buildings and cottages which will be surrounded by a beautiful landscaped area. There will be no medical facilities on the property, which will not be a rest home, hospital, or sanitarium. The buildings will be set back from the exterior boundaries of the 40-acre tract and will constitute a harmonious, well-designed unit, 1151*1151 which will be far more attractive than even a high-class subdivision, or an uncoordinated development of individual houses. The installation of sewer and water lines will directly increase property values and health conditions; improve fire protection facilities; and make the immediate development of surrounding areas easier and less expensive.” The City also attached conditions to the issuance of the permit, including: “That a landscaping plan be submitted and approved by the Planning Commission along with the final subdivision map with the entire landscaping plan to be completed within one year after the first building is occupied.

“…. …. …. …. …. …. .

“That construction shall be substantially as shown on the attached plan, except that the proposed 7-story building shall be reduced in height by two floors, with a proportional reduction in total height.”

By 1984, eucalyptus and pine trees on the Wesley Palms property exceeded the height of its five-story building and were obstructing views in Pacifica. Attempts to resolve the problem broke down and the Association filed suit in February 1984, alleging Wesley Palms had interfered with an easement to light, air and an unobstructed view created by the conditional use permit in favor of the Association. The Association sought damages and injunctive relief. In July 1984, the Association amended the complaint. It sought injunctive relief, alleging the Wesley Palms property was burdened with a servitude in favor of the Association to not permit any obstruction exceeding the height of Wesley Palms’ five-story building, had a duty under the conditional use permit to maintain its land so as not to be injurious to the Association’s property and was creating a nuisance by allowing its trees to obstruct the Association’s light and view.

Wesley Palms demurred. On September 7, 1984, the court sustained the demurrer without leave to amend. A judgment of dismissal was entered on October 3, 1984. The Association appeals, contending the conditional use permit was intended to give the Association’s members a right to an unobstructed view and Wesley Palms has violated that condition.

DISCUSSION

(1) “The function of a demurrer is to test the sufficiency of a complaint as a matter of law.” (Banerian v. O’Malley (1974) 42 Cal. App.3d 604, 611 [116 Cal. Rptr. 919].) (2) A demurrer admits the truth of all properly pleaded material allegations without regard to the difficulty of proof. (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496 [86 Cal. Rptr. 1152*1152 88, 468 P.2d 216].) (3) “`[T]he allegations of the complaint must be liberally construed with a view to attaining substantial justice among the parties.'” (King v. Central Bank (1977) 18 Cal.3d 840, 843 [135 Cal. Rptr. 771, 558 P.2d 857].)

(4) A general demurrer may be sustained without leave to amend where it is probable from the nature of the defects in the previous unsuccessful attempts the plaintiff cannot state a cause of action. On appeal, the question is whether the trial court abused its discretion in denying leave to amend. (Fugitt v. City of Placentia (1977) 70 Cal. App.3d 868, 871 [139 Cal. Rptr. 123].) The burden of showing an abuse of discretion rests on the appellant. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [134 Cal. Rptr. 375, 556 P.2d 737].)

(5a) As a general rule, a landowner has no natural right to air, light or an unobstructed view and the law is reluctant to imply such a right. (Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal. App.3d 116, 127 [99 Cal. Rptr. 350];Taliaferro v. Sayler (1958) 162 Cal. App.2d 685, 691 [328 P.2d 799]; 3 Miller & Starr, Current Law of Cal. Real Estate (1977) § 18:9, p. 262; 1 Ogden’s Revised Cal. Real Property (1974) § 13.13, p. 548; 3 Witkin, Summary of Cal. Law (8th ed. 1973) Real Property, § 360, p. 2056.) (6) Such a right may be created by private parties through the granting of an easement (see, e.g., Petersen v. Friedman (1958) 162 Cal. App.2d 245, 247 [328 P.2d 264]; Civ. Code, § 801, subd. 18) or through the adoption of conditions, covenants and restrictions (as is the case among the Pacificahomeowners) or by the Legislature (see, e.g., Civ. Code, §§ 801, subd. 18, 801.5; Pub. Resources Code, § 25980 et seq. [creating a right to sunlight for solar collectors]). Local governments may also protect views and provide for light and air through the adoption of height limits. (See, e.g., San Diego Mun. Code, § 101.0452 et seq.; Taliaferro v. Sayler, supra, 162 Cal. App.2d 685, 691.)

II

Wesley Palms asserts that even if the permit contained a condition limiting the height of its trees, this condition could not be enforced by the Association.

(7) The law allows a private individual to enjoin a zoning violation as a nuisance when the individual suffers a “special injury to himself in person or property of a character different in kind from that suffered by the general public” (Venuto v. Owens-Corning Fiberglas Corp., supra, 22 Cal. App.3d 116, 124, italics deleted) or an injury “greater than that suffered by the 1153*1153 public generally” (Cal. Zoning Practice (Cont.Ed.Bar 1969) § 11.6, pp. 479-480) or the individual is a “member of the community for whose particular welfare the ordinance was enacted” (McIvor v. Mercer-Fraser Co. (1946) 76 Cal. App.2d 247, 254 [172 P.2d 758]).

Here the Association alleges a specific conditional use permit contains a limitation on tree height and this limitation was imposed particularly for the benefit of the uphill landowners including the Association. Under these circumstances, the Association has met the standing requirements. It has sufficiently alleged it is a “member of the community for whose particular welfare the ordinance was enacted” (McIvor v.Mercer-Fraser Co., supra, 76 Cal. App.2d 247, 254) and it has suffered an injury different from or greater than that suffered by the general public. (Contrast Taliaferrov. Sayler, supra, 162 Cal. App.2d 685, where the plaintiff sought an injunction for a violation of a general height limit.^[1])

(8) Wesley Palms also contends the Association’s failure to timely appeal the issuance of the conditional use permit or seek court review of the issuance of the permit bars the present action. This contention has no merit. The Association here is not challenging the validity of the permit or its conditions but seeking to enforce a condition which it alleges was attached to the permit. Any action based on a violation of this alleged condition would have been premature if prosecuted within the time frame (10 to 180 days after issuance) suggested by Wesley Palms.

III

The Association asserts the conditional use permit restricted the height of Wesley Palms’ trees to the height of its five-story building.^[2] The Association 1154*1154 concedes the use permit does not expressly limit the height of the trees but argues such a limitation may be implied by reading together the City’s finding Wesley Palms would not be “injurious to property and improvements (existing or future) in the vicinity” with the permit’s conditions that Wesley Palms submit and obtain the planning commission’s approval of a landscaping plan and that Wesley Palms’ seven-story building be reduced by two floors. The Association contends since the City intended Wesley Palms be compatible with the surrounding community and since the City placed a five-story height limit on the building due to community concern, the City also intended to limit the height of the trees to the height of the five-story building.

First, we note the Association’s reliance on the permit’s language Wesley Palmswould not be “injurious to property or improvements (existing or future) in the vicinity” is misplaced. This language is contained in a finding of fact, not a condition. Such a finding — the proposed use “will not adversely affect” the neighborhood — is required for the issuance of every conditional use permit. (San Diego Mun. Code, § 101.0506-C.1.) (9) Moreover, when read in context, the language does not imply a height limitation on trees in favor of the Association.

The planning commission found the Wesley Palms project would not be injurious “because a capable architect has designed attractive buildings and cottages which will be surrounded by a beautiful landscaped area.” Thus, the focus is on the aesthetics of Wesley Palms, not on protecting the Association’s views. The finding continues: “There will be no medical facilities on the property, which will not be a rest home, hospital, or sanitarium. The buildings will be set back from the exterior boundaries of the 40-acre tract and will constitute a harmonious, well-designed unit, which will be far more attractive than even a high-class subdivision, or an uncoordinated development of individual homes. The installation of sewer and water lines will directly increase property values and health conditions; improve fire protection facilities; and make the immediate development of surrounding areas easier and less expensive.” This language is also directed at how Wesley Palms would fit into the community aesthetically and otherwise and how it would provide beneficial improvements. It is not directed at protecting the Association’s views.

(10) The Association also relies on the permit’s requirement Wesley Palms obtain the planning commissioner’s approval of a landscape plan to show the existence of the height limit. Presumably, Wesley Palms complied with this condition by submitting a landscape plan showing the eucalyptus 1155*1155 and pine trees and obtaining the commissioner’s approval of this plan. The Association has made no allegations to the contrary.^[3] Thus, it must be inferred the planning commission approved the mature height of the trees since it attached no trimming or other height restrictions and this would naturally be a place for imposing such a restriction.

(11) Finally, the Association points to the permit’s condition reducing the height ofWesley Palms’ seven-story building to five stories as implying a similar reduction in the height of its trees. We disagree.

San Diego’s Municipal Code in its definition of “Height (Building)” refers only to “a building or structure.” (San Diego Mun. Code, § 101.0101.62.) In pertinent part, it provides: “As used herein, building or structure shall include such structural appurtenances as parapets; safety guardrails other than the type specified below; elevator shaft and stairwell enclosures not meeting the specified criteria below; chimneys, vents, stacks, or ducts exceeding twelve square feet in any one plane; other mechanical equipment and related screening; and similar features. Items not included as structural appurtenances nor in any determination of the height of a building or structure are television and radio reception antennae; flagstaffs; chimneys, vents, stacks, or ducts not exceeding twelve square feet in any one plane; open safety guardrails which are no higher than forty-two inches above a roofline, which contain vertical elements no greater than two inches square in cross section and no closer than four inches apart; and elevator shaft or stairwell enclosures above a building roofline and meeting the following criteria: …” (San Diego Mun. Code, § 101.0101.62.) Similarly, in the section, “Height Limitation Zones — Establishment of,” it states in pertinent part: “In a height limitation zone, no building or structure shall be erected, constructed, altered, moved in or enlarged to a greater height than is permitted in said zone.” (San Diego Mun. Code, § 101.0452, italics added.) The section goes on to detail how the height of a building is to be measured and repeats the definition of building height provided in section 101.0101.62.

These sections negate the Association’s contention that included in a height restriction of a building is a corresponding height restriction of trees. This conclusion is strengthened by the fact the City has in other instances specifically imposed height restrictions on trees.

In Municipal Code section 101.0449 (Airport Instrument Approach Zone) the city had provided,^[4] in pertinent part: “In an Airport Instrument Approach 1156*1156 Zone, no structure, building, tower, smokestack, overhead transmission lines, trees or any objects of natural growth, shall be erected, constructed, altered, moved in, enlarged or allowed to grow in such a manner as to create an airport hazard which obstructs the aerial approach to an airport or is otherwise hazardous to its use for airplane landing or taking off.

“It is hereby declared that any building, structure, tree or object of natural growthwhich extends through or above a height limitation plane, as hereinafter defined, shall constitute an airport hazard and a public nuisance.” (Italics added.) (See also San Diego Mun. Code, § 101.0450, Airplane Flight Training Zones.)

The City has also adopted sections addressing the height of “major landscaping at maturity” in the context of solar access and has required a “shadow plan” to be submitted in certain instances. (See, e.g., San Diego Mun. Code, §§ 101.1208, 103.0101-C.)

The fact the City has expressly addressed the height of trees in other contexts leads to the conclusion that if the City had intended a height limit on the trees in this instance, it would have so stated. Since it did not and since conditions on a conditional use permit must be expressly attached (see San Diego Mun. Code, § 101.0506-C-4), we conclude no such height limit was intended here.

The Association also contends it has a cause of action against the Wesley Palms because Wesley Palms in accepting the benefits of the permit, accepted a corresponding obligation to conduct its operation in good faith, i.e., to not cause unnecessary or unreasonable interference with the rights of surrounding property owners by allowing its trees to obstruct their views. (5b) However, as we noted before, a property owner has no natural right to an unobstructed view. In the absence of any agreement, statute or governmentally imposed conditions on development creating a right to an unobstructed view, it cannot be said Wesley Palms either acted in bad faith or interfered with any right. It did only what the law allows.

The judgment is affirmed.

Butler, J., and Lewis, J., concurred.

[1] In Taliaferro, the court held the adjoining landowner had no standing to seek damages for his neighbor’s violation of a general height limit because the height limit granted him no easement for air and light and since he had no easement, he had no damages. But see Hopkins v. MacCulloch (1939) 35 Cal. App.2d 442 [95 P.2d 950], and Smith v. Collison (1931) 119 Cal. App. 180 [6 P.2d 277], where the courts found anyone residing in a residential zone could enjoin and seek damages from the owner of a nonpermitted commercial use. See also California Zoning Practice, supra, section 11.6, page 480, observing: “To show special injury, the above cases seem to require only proof that plaintiff’s property decreased in value because of the violation. Kappadahl v. Alcan Pac. Co. (1963) 222 CA2d 626 …, although dealing with landowners seeking mandamus to compel revocation of a building permit allegedly issued in violation of the zoning ordinance, suggests that when a private person seeks to enforce a zoning ordinance a showing of special injury may no longer be required or that the court will presume the existence of special injury.”

[2] The trees are uphill of the five-story building. The Association apparently wants the trees’ height limited to the height of an imaginary horizontal line drawn from the top of the five-story building to the hillside, a height less than five stories at the hillside.

[3] In its brief on appeal, the Association states the trees were blocking views by 1966.

[4] This section and section 101.0450 were in effect at the time the conditional use permit was issued but were repealed in December 1985.

Keywords: Governing Documents, Enforcement, Proper Parties, Views

Pacific Hills Homeowners Association v. Prun

73 Cal.Rptr.3d 653 (2008)

655*655 Law Offices of Richard A. Tinnelly, Bruce R. Kermott, Aliso Viejo; Blackmar, Principe & Schmelter, Gerry C. Schmelter, San Diego, and Christina B. VonBehren, for Plaintiff and Appellant.

Law Office of Julie M. McCoy and Julie M. McCoy, Newport Beach, for Defendants and Appellants.

Summary by Mary M. Howell, Esq.:

Judicial action to enforce CC&Rs, and architectural guidelines must be brought within 5 years of the date of the violation, per Code of Civil Procedure §336.  Further, owners’ claim that association had waived its right to enforce because it did not enforce against other owners with similar violations was unsuccessful, because the association was not aware of the violations until defendant owner reported them, and thereafter the association enforced to the degree appropriate given the nature of the other violations.

**End Summary**

654*654 OPINION

RYLAARSDAM, Acting P.J.

Defendants Jon L. Prun and Linda L. Prun appeal from a judgment requiring them to reduce the height of or move a gate and a fence in the front of their residence that violates the height and setback requirements in the covenants, conditions, and restrictions and architectural guidelines adopted by plaintiff Pacific Hills Homeowners Association. They contend the action was not subject to a five-year statute of limitations in Code of Civil Procedure section 336, subdivision (b) (all further statutory references are to this code unless otherwise noted) as the court determined but was barred by the four-year statute of limitations in section 337.

They also assert that, in any event, the action was barred by laches and waiver, and the court erroneously excluded certain evidence of other nonconforming use. We disagree with each contention.

Plaintiff filed a cross-appeal claiming that portion of the judgment requiring it to pay for two-thirds of the cost of relocation of defendants’ gate upon satisfaction of certain conditions was erroneous. It did not address the substance of that issue, however, arguing that because defendants had not satisfied the conditions, its own appeal was moot. We decline plaintiffs request to clarify the effect of that part of the judgment.

Thus, we affirm the judgment.

FACTS

Defendants’ home is located in a planned community subject to a Declaration of Covenants, Conditions and Restrictions (CC & R’s) and governed by plaintiff. The656*656 CC 4 R’s allow plaintiff to adopt reasonable rules and incorporate them into the CC & R’s. The CC & R’s require “the prior written approval of the Architectural Committee” (committee) before construction of any improvement, including a “fence or wall” and also mandate submission of plans to the committee and its approval before construction can begin. Plaintiff also adopted Architectural Guidelines (guidelines) that limit fences to 6 feet in height unless they are within 20 feet of the front property line, in which case the maximum height is 3 feet.

In late 2000 defendants decided to erect a mechanical gate, connected to a fence and pilasters, across their driveway. Jon testified they reviewed the copy of the CC & R’s and guidelines they received when they purchased the home and found no mention of setbacks. Jon also testified that after this action was filed he noticed that the copy of the guidelines they received upon purchase of their home contained only odd-numbered pages; they were missing the page containing the setback requirements. (We note that the guidelines and amended guidelines in the record show the setback requirement was on odd-numbered pages.)

After reviewing those documents, Jon then called the property management company and asked about setbacks. Jon testified that Bill Scales, the Architectural Administrator, told him that neither plaintiff nor the City of Mission Viejo had setback requirements. According to Jon, Scales only said that color was critical and the gate should be of high quality. Scales assured him “there won’t be any problem” or “there shouldn’t be any problem” after Jon told him a professional contractor was installing the gate. Jon also testified Scales said he would fax the forms defendants needed for plaintiffs approval and that permission should take only a couple of weeks. Jon testified he understood the approval was “basically a formality.”

Scales testified he did not remember the call and would not have checked a city setback requirement for a homeowner because he had no copy of those codes.

In the meantime defendants started building the gate. When Scales learned of it he sent a letter informing them construction violated the CC & R’s because prior approval was required; he asked for plans to be submitted. In late November Jon completed the forms he had received from Scales and sent them both to him and to the committee; he did not enclose plans.

In January 2001, plaintiff sent a letter to defendants asking for plans. Defendants re-sent their application with a drawing that did not show the specifics of the gate as required by the CC & R’s. Consequently, plaintiff returned it stamped, “Disapproved as submitted” (capitalization omitted) with another request for defendants to “[s]ubmit clear drawings….” Defendants then did so, showing the gate within three feet of the front property line. In mid-February the committee denied approval of defendants’ proposed fence and gate because it did not comply with the setback requirements. But defendants had already completed the gate.

In late July and August 2001 plaintiff sent letters to defendants, first asking them to comply with the CC & R’s and then inviting them to attend a board meeting in October. Thereafter plaintiff sent a letter giving defendants a November deadline for them to move the gate to comply with the setback requirements and advising it would assess a $100 fine if they did not; plaintiff also invited them to a meeting in December to “discuss the situation.”

At some point plaintiff contacted the City of Mission Viejo advising it of the situation. In May 2002, the city sent written 657*657 notice to defendants that their gate violated its setback requirements. Between November 2002 and January 2003, plaintiff sent four more letters assessing fines and inviting defendants to meetings, which they attended.

In March 2003, plaintiffs lawyer sent a letter to defendants, stating it was plaintiffs “last effort to resolve th[e] matter” and insisting that the gate be moved back. It gave defendants 10 days to advise whether or not they intended to comply; if not plaintiff would take legal action. Jon testified he called the lawyer and explained defendants'”side of the … story.” He also testified plaintiffs counsel told him he thought that sounded “logical” and “plausible”; he wanted to research the matter and said if he did not get back to defendants, they should “consider the matter closed.”

Thirteen months later in April 2004 a different lawyer sent a letter to defendants inviting them to submit the matter to alternative dispute resolution and advising that if they did not respond in 30 days, plaintiff “may authorize” filing of a lawsuit. When Jon called that lawyer he was told, “we’re going to make you move the gate.” Nothing happened until almost one year later, in March 2005, when plaintiffs lawyer sent another letter suggesting mediation.

When defendants did not mediate, in April 2005 plaintiff filed this action for breach of the CC & R’s, nuisance, and declaratory and injunctive relief. The injunction sought was based on violation of the setback requirements, not defendants’ failure to obtain prior approval of the project. The case went to trial only on the injunction cause of action.

The court found in favor of plaintiff. It ruled, in part, that the five-year statute of limitations in section 336, subdivision (b) applied and thus the action was filed timely. The court also found defendants had not proven their other affirmative defenses of estoppel, laches, or waiver.

The judgment ordered defendants to lower their fence, gates, and pilasters to a maximum of 3 feet, or, in the alternative, to set them back to at least 20 feet from the front property line. In that case, the height could be up to six feet. If defendants chose the latter alternative and gave plaintiff timely written notice of their decision, plaintiff would be required to pay two-thirds of the cost of the relocation. If defendants did not timely give notice, they had to pay the entire cost of the ordered corrections. If defendants gave such notice and plaintiff did not agree in writing to pay two-thirds of the cost, the injunction would dissolve and defendants would be allowed to keep the gates and fence as built.

DISCUSSION

1. Applicable Statute of Limitations

Plaintiff filed this action more than four years but less than five years after defendants erected the gate. Defendants contend that section 336, subdivision (b), which is a five-year statute of limitations, applies only to recorded documents, in this case, CC & R’s, and not to unrecorded rules and regulations or guidelines of homeowners associations such as are at issue here. We disagree.

Section 336, subdivision (b) provides for a five-year statute of limitations for “[a]n action for violation of a restriction, as defined in Section 784 of the Civil Code.” Civil Code section 784 states, “`Restriction,’ when used in a statute that incorporates this section by reference, means a limitation on, or provision affecting, the use of real property in a deed, declaration, or other instrument, whether in the form of a covenant, equitable servitude, condition 658*658 subsequent, negative easement, or other form of restriction.”

Defendants maintain that, for this definition to apply, a restriction must be recorded. They advance several grounds for this assertion, including the plain language of the statute and its legislative history, the rule that statutes should be harmonized, the absence of the setback restriction from the recorded CC & R’s, and the principle of ejusdem generis. Based on our reading of the plain language of section 336, subdivision (b) and Civil Code section 784, we conclude section 336, subdivision (b) does not govern merely recorded restrictions but applies to unrecorded restrictions as well.

“`When interpreting statutes, “we follow the Legislature’s intent, as exhibited by the plain meaning of the actual words of the law” “`…'” giving them their usual and ordinary meaning and construing them in context. [Citation.] If the plain language of the statute is clear and unambiguous, our inquiry ends, and we need not embark on judicial construction. [Citations.] If the statutory language contains no ambiguity, the Legislature is presumed to have meant what it said, and the plain meaning of the statute governs.’ [Citation.]” (Stephens v. County of Tulare (2006) 38 Cal.4th 793, 801-802, 43 Cal. Rptr.3d 302, 134 P.3d 288.) This is so “`”`whatever may be thought of the wisdom, expediency, or policy of the act.'”‘ [Citations.]” (California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 632, 59 Cal. Rptr.2d 671, 927 P.2d 1175; see also Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733, 3 Cal.Rptr.3d 636, 74 P.3d 737.)

A restriction, as defined in Civil Code section 784, is a limitation on the use of real property, as set out in several specified types of documents, including covenants, equitable servitudes, conditions subsequent, and negative easements, with a catchall description at the end applying to any “other form of restriction.”

Nothing in the language states this last category of restriction must be recorded. The fact that all enumerated documents are generally recorded does not compel such an interpretation. Had that been the intent of the Legislature, it could have easily used the language any “other form of recorded restriction.”

But it did not, and it is not within our province to do so in the guise of interpretation, even if that seems like a more logical or better policy. If such was its intent, the Legislature has the ability and opportunity to amend the language to make this clear.

Because we determine the plain meaning of the statute based on its language, we do not resort to extrinsic aids to construe its meaning. (Beat Bank, SSB v. Arter & Hodden, LLP (2007) 42 Cal.4th 503, 508, 66 Cal.Rptr.3d 52, 167 P.3d 666.) Thus, we need not address defendants’ other arguments as to the meaning of the statutes.

2. Laches

Defendants also assert that plaintiffs claim is barred by laches. “`The defense of laches requires unreasonable delay plus either acquiescence in the act about which plaintiff complains or prejudice to the defendant resulting from the delay.’ [Citation.]” (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 68, 99 Cal.Rptr.2d 316, 5 P.3d 874.) Defendants argue plaintiffs more than four-year delay in filing the action was “patently unreasonable” and that the delay shows plaintiff acquiesced in defendants’ placement of the gate. It points to three 1-year periods in which plaintiff did virtually nothing with respect to defendants’ gate.

659*659 There is no question plaintiff delayed in enforcing the setback restriction. Despite the spin it tries to put on the facts, plaintiffs alleged “sheer volume” of attempts and “continued … efforts to bring [defendants] into compliance” do not explain those lengthy gaps in its contacts with defendants or its extended inactivity. We do not condone this course of conduct and in the right fact situation, which we do not define, such delays could support a finding of laches.

But we agree with the trial court that defendants cannot show prejudice. They began building the gate before they submitted an application for approval of their project and before the architectural committee got involved. The evidence showed construction was finished by as early as November 2000 and no later than February 2001. Thus, it would not have mattered whether plaintiff was diligent.

Nor, despite the delays, can defendants show plaintiff acquiesced. Plaintiff made its opposition to the gate known from the moment it was built, and it never changed its position or communicated to defendants it had changed its position. And, importantly, Jon testified that from February 2001 until the complaint was filed, he understood that plaintiff “appeared to want the gate moved.” Thus, the defense of laches must fail.

3. Waiver

Defendants also assert plaintiff waived its right to enforce the guidelines because it did not apply them fairly, reasonably, or uniformly. They contend plaintiff had the burden of proof to show it in fact did enforce the guidelines fairly, and the court erred in not requiring that plaintiff meet that burden but instead put the burden on defendants to prove an affirmative defense. Finally, defendants claim the court erred by excluding defense evidence that showed plaintiff had arbitrarily allowed a nonconforming use by another property owner. None of these arguments persuades.

“When a homeowners’ association seeks to enforce the provisions of its CCRs to compel an act by one of its member owners, it is incumbent upon it to show that it has followed its own standards and procedures prior to pursuing such a remedy, that those procedures were fair and reasonable and that its substantive decision was made in good faith, and is reasonable, not arbitrary or capricious. [Citations.]” (Ironwood Owners Assn. IX v. Solomon (1986) 178 Cal.App.3d 766, 772, 224 Cal.Rptr. 18.) “The criteria for testing the reasonableness of an exercise of such a power by an owners’ association are (1) whether the reason for withholding approval is rationally related to the protection, preservation or proper operation of the property and the purposes of the Association as set forth in its governing instruments and (2) whether the power was exercised in a fair and nondiscriminatory manner. [Citations.]” (Laguna Royale Owners Assn. v. Darger (1981) 119 Cal. App.3d 670, 683-684, 174 Cal.Rptr. 136.)

Here there was evidence plaintiff followed its ordinary procedures in attempting to enforce the setback requirement. It sent letters demanding that defendants comply with the guidelines, invited defendants to meet with the board, imposed fines, and finally filed suit.

Defendants complain that their nextdoor neighbors, Anthony and Kathleen Garcia, built in violation of the guidelines but plaintiff did not sue them to compel compliance with the architectural rules. Thus, they conclude, plaintiff lost its right to enforce the restrictions as to defendants. The Garcias obtained plaintiffs approval to build pilasters within the 20-foot setback area. But during construction, 660*660 which occurred six years before defendants’, they apparently built their pilasters six feet high in violation of the guidelines. Plaintiff was unaware that had occurred until defendants pointed it out during the pendency of this dispute.

At that point plaintiffs committee sent letters to the Garcias asking them to modify the pilasters to conform to the guidelines, and the committee and the management company discussed the violation. Plaintiff determined that the Garcias’ pilasters were “not as obtrusive as [defendants’] gate was.” It also concluded, as its expert, an architect and engineer, testified that the Garcias’ pilasters are only a “minor obstruction” and therefore not as dangerous, compared to defendants’ gate, which is a safety hazard.

Although this is not overwhelming evidence, it met plaintiffs burden of proof to show it did address the Garcias’ violation and did not act unreasonably or unfairly in not suing them as it did defendants. Thus, the court did not improperly shift the burden of proof to defendants’ to prove an affirmative defense,

“[E]nforcement of the restriction must be in good faith, not arbitrary or capricious, and by procedures which are fair and uniformly applied. [Citation.] The framework of reference, as the court made clear, is not the reasonableness specific to the objecting homeowner, but reasonableness as to the common interest development as a whole. [Citation.]” (Liebler v. Point Loma Tennis Club (1995) 40 Cal.App.4th 1600, 1610, 47 Cal. Rptr.2d 783.) The evidence shows plaintiff took into account the relative safety of the two different structures, thus evaluating them in light of the entire development, in deciding how to proceed.

Defendants argue they had evidence of another homeowner’s violation of the guidelines that would support their waiver argument but the court erroneously excluded it. But nothing in the record shows defendants made an offer of proof, as was their burden, nor does it give us any information about the particulars of the evidence such that we could determine whether it was error to exclude it. Magic Kitchen LLC v. Good Things Internal, Ltd. (2007) 153 Cal.App.4th 1144, 1164-1165, 63 Cal.Rptr.3d 713.)

4. Plaintiffs Appeal

Plaintiff filed, a cross-appeal, claiming the court abused its discretion in ordering it to pay for two-thirds of the cost of moving defendants’ gate. It maintains there was no evidence the cost of relocating the gate would “cost twice” the amount plaintiffs expert testified to. Plaintiff misstates the court’s decision.

In its tentative ruling the judge did note it was “very likely it will cost appreciably more than [the expert’s] estimate.” But its ruling was not based on evidence of the cost. The tentative stated it was because of “plaintiffs sloppiness in not pursuing this much more promptly….” Injunctions are based on equity (Syngenta Crop Protection, Inc. v. Helliker (2006) 138 Cal.App.4th 1135, 1166-1167, 42 Cal.Rptr.3d 191), and we see no abuse of discretion in the result the court fashioned. (See City of Vernon v. Central Basin Mun. Water Dist. (1999) 69 Cal. App.4th 508, 516, 81 Cal.Rptr.2d 650.)

Plaintiff asserts that its appeal “is apparently moot” because defendants did not timely elect to move the gate back at least 20 feet from the property line, and asks for a “clarification of the effect of the passage of [the] time lines” set out in the judgment. We decline to do so. There is nothing in the record to show what occurred after judgment was entered with respect to the gate. Nor do we give advisory opinions. (Coleman v. Department of Personnel Administration (1991) 52 661*661 Cal.3d 1102, 1126, 278 Cal.Rptr. 346, 805 P.2d 300.)

DISPOSITION

The judgment is affirmed. In the interests of justice, the parties shall bear their respective costs on appeal.

WE CONCUR: O’LEARY and FYBEL, JJ.

Keywords: Governing Documents, Statute of Limitations

Morgan v. Veach

59 Cal.App.2d 682 (1943)

John L. Wheeler for Appellants.

Max E. Gilmore and Albert E. Marks for Respondents.

WOOD (Parker), J.

Summary by Mary M. Howell, Esq.:

Owner seeking to enforce setback restrictions against a neighbor is not barred by laches because once the owner was able to discern from his lot that a setback violation was occurring, he put his neighbor on notice of the problem.   Judgment in the alternative (cure the setback violation or pay damages) was not inappropriate.

**End Summary**

In this action to enjoin the violation of building setback restrictions, plaintiffs obtained judgment requiring defendants to move the building erected by them in violation of the restrictions or to pay $1,000 damages. 685*685

The tract of land involved herein, consisting of 12 lots, included 10 hillside lots, the fronts of which adjoined a semicircular street that extended up-grade in a northerly direction. Beginning at the southerly end of the tract and extending northerly, the lots fronting on that street were numbered from 1 to 10 inclusive. Generally stated, the lots faced as follows: lots 1, 2, 3, and 4, south; lots 5 and 6, southeast; and lots 7, 8, 9, and 10, east.

The lots owned by plaintiffs and the approximate values thereof were as follows: Raymond R. Morgan, lot 1 and house, $20,000; Karl and Edith Schneider, lot 2 and house, $23,000; Pauli Hoffman, lot 4 and house, value not stated; Virginia W.Morgan, lot 8 and house, $25,000; and Jean and Paul Carson, lot 9, vacant, $4,000. Defendants, husband and wife, owned lot 10, at the northerly end of the street.

All the parties held their lots under a deed which provided, pursuant to a general plan of improvement of said lots and tract, that the residences on the various lots “shall be placed not less than” the following mentioned distances from the front property lines of the lots: 45 feet on lots 1, 2, 3, and 4; 40 feet on lot 5; 35 feet on lot 6; 30 feet on lot 7; 25 feet on lot 8; and 20 feet on lots 9 and 10. The deed provided further that “no building … shall be erected or maintained within 5 feet of the sidelines of any of said lots nor any fence, wall or hedge nearer to the front line thereof than the setback hereinabove established or elsewhere thereon at a greater height than 5 feet”; and that said conditions “shall … terminate … after January 1, 1960. … Provided also that a breach of any of the foregoing conditions shall cause the lot … to revert to said grantor, or its successors … and as to the owner … of any other lot … the foregoing conditions shall operate as covenants running with the land, and a breach of any such covenants … may be enjoined, abated or remedied by said grantor … or by any such owner. …”

Defendants admitted in their answer that their residence did not comply with the restrictions, but denied that it was constructed in violation of them. They alleged further: (1) that plaintiffs’ claims for injunctive relief were barred by laches on the part of plaintiffs, in that, when the action was commenced the house was substantially completed; (2) that plaintiff Pauli Hoffman constructed a house and a wall on lot 4 which did not conform with the restrictions, and therefore 686*686 the claims of plaintiffs for injunctive relief were barred; and (3) that plaintiff Virginia W. Morgan maintained for many years a hedge on lot 8 between the southeasterly corner of the residence on lot 8 and the curb, which did not conform with the restrictions, and therefore the claims of plaintiffs for injunctive relief were barred.

On July 22, 1941, defendants received a deed to lot 10 which recited that the lot was subject to restrictions of record. On August 1st, defendants received a policy of title insurance which stated the number of the book and page of the official records wherein the restrictions appeared. Stakes and lines placed on lot 10 by defendants on July 15th to indicate the foundation lines remained in position until August 10th, when excavation was commenced. Construction of the cement foundation, started September 3rd, was finished September 13th. Erection of the rough framework of the building, commenced September 15th, was completed September 27th.

Defendant Russel A. Veach and plaintiff Raymond R. Morgan will be referred to hereinafter as the defendant and Morgan, respectively.

About September 21st, when some of the rough framework of the walls had been erected, a brother of plaintiff Morgan, who lived across the street from lot 10, told defendant that the house was too close to the front property line. On September 21st, plaintiff Morgan, who owned lot 1 and lived on lot 8 owned by his wife Virginia W.Morgan, noticed for the first time that defendant was building in violation of the restrictions; and on September 22nd (according to his testimony), or on September 29th (according to defendant’s testimony), he said to defendant by telephone that the house was too close to the line and defendant was violating the restrictions. Defendant replied that his builder had told him he could build anywhere on the lot and he (defendant) thought he would go ahead as planned. About September 29th, defendant went to Morgan’s office and told him: that he had found the restrictions as to the setback; that he did not know what he could do about it, since it would cost him more to relocate the house than he had expended at that time; and that he was going ahead with the building anyway. Morgan replied that if he did go ahead, he (Morgan) would have to do something about it and try to stop him legally. About October 1st,Morgan’s attorney sent a letter to defendant, which 687*687 reached him October 15th or 16th, stating that unless defendant complied with the restrictions, relief would be sought from the courts. Thereafter and during October, the rough plumbing, the fireplace, cabinets, paper and netting on the outside for stucco, and plaster board on the inside, were installed. This action was commenced on October 31, 1941. On November 1st, a temporary restraining order was served on defendants. At that time the house was ready for the outside stucco and the inside plaster. Within a week after the temporary restraining order was dissolved, defendant resumed work on the house, and, according to his statement, he proceeded to complete it “in a hurry” because materials were hard to get. The house was completed on December 24th. The cost of the house, not including the lot, was about $10,000.

The front property lines of the lots are 8 feet from the street curb, and there is no sidewalk. The garage on defendants’ lot is “a part of the main residence,” as required by the restrictions, and adjoins the house at the front on the south side. Defendants’ house, instead of being at least 20 feet from the front property line, is the following distances from the front property line: the northerly corner of the house, 8.2 feet; the northeast corner of the garage, 13.65 feet; and the southeast corner of the garage, 21.7 feet. Defendants’ house, instead of being 5 feet from the lot sidelines, is the following distances from the sidelines of lot 10: the north side, 3.8 feet; and the south side, 3.5 feet.

The trial court found that defendants’ residence did not comply with said restrictions, particularly in that said building was placed less than 20 feet from the front property line of lot 10; that about September 21, 1941, plaintiffs caused defendants to be notified of the fact that defendants were constructing a building which did not conform with the setback restrictions; that notwithstanding said fact and notice defendants continued with and completed the construction of said building in violation of said restrictions and covenants; that said violations by defendants caused damage to plaintiffs, and the beauty and symmetry of the plan of improvement of the tract was diminished; that there was no laches on the part of plaintiffs; that it was not true that the building constructed on lot by plaintiff Hoffman, and the building constructed on lot 8 by plaintiff Virginia W. Morgan, did not conform with said restrictions. 688*688

[1] The first contention of defendants is that the trial court abused its discretion in granting the injunction. They assert “that while the defendants’ residence building was constructed in violation of the restrictions in that the residence was set too close to the front property line, such construction was the result of inadvertence and mistake upon the part of defendants.” They state that the inadvertence and mistake occurred by reason of the following: that the real estate agent who sold the lot told them the curb was the front line of the lot, and they could build anywhere on the lot, except within 5 feet of the south line; that the deed received by defendants did not specifically set forth any restrictions; that the lot was on a steep hillside and there was no sidewalk or trees in the space of 8 feet between the curb and the front property line, dedicated to the city, to indicate the front line was not the curb; that the garage on the lot north of lot 10 (which was not in the tract involved) was closer to the curb than defendants’ house; and that lot 9, to the south of defendants’ lot was vacant, and the street between the Morgan house on lot 8, and defendants’ lot 10 curved appreciably into the hill.

The matters just referred to, standing alone, might indicate inadvertence and mistake, but there were other circumstances to be considered by the trial court. It is difficult to understand why defendant relied upon the agent for information regarding the restrictions when authoritative information was available, as indicated by references to the restrictions in the deed and policy of title insurance received by defendants before the building was commenced. Although he might have acted inadvertently prior to the time he was notified by Morgan’s brother and by Morgan that he was building too close to the line, thereafter he proceeded with knowledge that the restrictions required a setback of not less than 20 feet and with knowledge that his building was considerably less than 20 feet from the line. At the time he was so notified, the expense of changing the location of the house would have been between $1,500 and $2,000. Defendant did not heed the notices, declared his intention on two occasions to proceed without complying with the setback restrictions, and proceeded “in a hurry” to complete the house irrespective of said oral notices and a written demand by Morgan’s attorney that he comply with the restrictions, and irrespective of pending litigation to prohibit him. Although defendant stated that he relied upon 689*689 the agent for information as to the restrictions and the agent told him the building should not be within 5 feet of the south line, it is to be noted that defendant violated even that restriction and built the house 3 1/2 feet from the south line. There was evidence that defendant intended in the first instance to build farther back on the lot but he changed his mind in order to have more space in the back yard. The construction in violation of the restrictions, at least after the foundation was in, was not the result of inadvertence or mistake.

[2] Defendants assert further, as a part of their argument that the court abused its discretion in granting the injunction, that, although the plaintiffs Morgan were in a position at all times to observe the proposed location of the house, a period of more than two months elapsed before defendant was advised the restrictions were being violated, that plaintiffs permitted defendant to continue the construction until the latter part of October, when the house was substantially completed, without bringing to his attention their determination to require compliance with the restrictions; and that while such failure of plaintiffs to act might not have constituted laches the elements of estoppel were present and the issuance of an injunction worked an inequitable burden on defendants. By reason of the hillside character of defendants’ lot, the terraces thereon, and the curve of the street, it was difficult for persons who were not on defendants’ lot and were not builders to determine, before the walls were started, whether the restrictions were being violated.

Plaintiffs were not required, at the risk of waiving a violation of restrictions by defendants, to scrutinize the activities of defendant to ascertain whether he was violating the restrictions. At a time, however, when Morgan could first determine with reasonable certainty, without being upon the lot, that the restrictions were being violated, that is when the walls were started, he notified defendant immediately that he objected to the violation. In response to defendant’s statement that he would go ahead as planned, plaintiff Morgan stated he would try to stop him legally. The position of Morgan that he would insist upon compliance with the restrictions was placed before defendant definitely and promptly when he ascertained the facts. The claim of laches or estoppel cannot be sustained.

[3] An appropriate statement relative to defendants’ assertion that an injunction would work an inequitable burden is in 28 Am.Jur., section 56, page 253 as follows: “In view of 690*690 the drastic character of mandatory injunctions, the rule under consideration as to balancing the relative conveniences of the parties applies with special force to a prayer for such mandatory relief. Where, therefore, by innocent mistake or oversight, buildings erected … slightly encroach … and the damage to the owner of the buildings by their removal would be greatly disproportionate to the injury … the court may decline to order their removal … But relief by way of a mandatory injunction will not be denied on the ground that the loss caused by it will be disproportionate to the good accomplished, where it appears that the defendant acted with a full knowledge of the complainant’s rights and with an understanding of the consequences which might ensue. …”

In a note in 57 A.L.R., first column, page 343, it was said: “Wilfulness on the part of the defendant in proceeding with the violation of the restriction after warning by the complainant, especially after suit is brought, is a ground for equitable relief by mandatory injunction greatly stressed by the courts. Thus, one who deliberately violates building restrictions placed upon his lot for the benefit of a district in a city cannot avoid a mandatory injunction so to build as to comply with the restrictions, on the theory that the loss caused by it will be disproportionate to the good accomplished.” The case of Stewart v. Finkelstone, (1910) 206 Mass. 28 [92 N.E. 37, 40, 138 Am.St.Rep. 370, 28 L.R.A.N.S. 634] cited in support of that statement, stated at page 38: “It is strongly urged that a mandatory injunction ought not to issue, for the reason that it would … impose on the defendant a loss disproportionate to the good it can accomplish. … This remedy … in cases proper for its exercise … ought not to be with-held merely for the reason that it will cause pecuniary loss. It has been found that the defendant with full knowledge of the restrictions ‘deliberately attempted’ to override them, and thus to deprive the district of the character given it by the restrictions. He took his chances as to the effect of his conduct with eyes open to the results which might ensue. It has been the practice of courts to issue mandatory injunctions upon similar facts.”

[4] Defendants assert also, under their point concerning abuse of discretion in granting the injunction, that plaintiffs did not prove any damages. In Walker v. Haslett, (1919) 44 Cal.App. 394 [186 P. 622], it was said at page 398: “When clearly expressed, covenants of this description will be strictly 691*691 enforced, and a court of equity will decree an injunction, and this without any showing of actual damage or substantial injury. … He [owner] has the right to define the injury for himself, and also for his grantees of the remaining lots. … He, or any subsequent owner … may enforce the covenant when it is broken, and is not to be defeated by the opinion of any number of persons that the breach occasions no substantial injury.” It was said in Joyce v. Krupp, (1927) 83 Cal.App. 391 [257 P. 124], at the bottom of page 398: “Where equitable relief is sought, proof of actual or substantial injury is not essential, the establishment of a violation of a uniform building restriction being all that is necessary to entitle a complaining owner to relief. …” “The propriety of affording equitable relief by injunction rests in the sound discretion of the trial court to be exercised according to the circumstances and exigencies of each particular case.” (Diederichsen v. Sutch, (1941) 47 Cal.App.2d 646, 649 [118 P.2d 863].) The court did not abuse its discretion.

[5] The second contention of defendants is that equitable relief should not be granted to one who has violated restrictions. They assert that plaintiff Virginia W. Morgan violated restrictions as to lot 8 in that she maintained a hedge about 7 feet in height on the south side of her house. A witness called by defendants testified to that effect.Morgan testified that there was a line of shrubs, but not a solid line, between the curb and the southeast corner of the house; that the shrubs were not on the Morgan property; that they were not a hedge; that he planted them on the adjoining lot 7, with the permission of the owner; and that he could remove them in 10 minutes. The court found that it was not true that the building on lot 8 did not conform with the restrictions. No finding was made concerning the hedge or shrubbery, but the finding that the building was not in violation of the restrictions should be regarded, in view of the judgment, as a general finding sufficient to include the item of landscaping. They also assert that plaintiff Hoffman violated the restrictions as to lot 4, in that a wall which extended across the premises was 40 feet from the curb instead of being not less than 45 feet from the property line, as required by the restrictions. Morgan testified that the part of the premises referred to as a wall was landscape gardening to hold up flower beds. Defendants also contended that a corner of the Hoffman garage 692*692 was 2 feet closer to the property line than was permitted by the restrictions. The garage adjoined the residence building, as required by the restrictions, and was a part of it. The court found that it was not true that the building on lot 4 did not conform with the restrictions. No special finding was made concerning the wall or the garage. There was no allegation in the answer referring specially to the garage. The general finding concerning the building included the garage and was sufficient, in view of the judgment, to include also a determination that the portion of the premises referred to as a wall or a part of a flower bed was not a violation.

[6] Furthermore, it was not alleged that any of the plaintiffs other than the owners of lots 10 and 4 violated the restrictions. Defendants did contend, however, that a hedge on lot 2 which the owner, Mrs. Schneider, said was 1 foot high, was a violation. Even assuming that some of the plaintiffs had violated the restrictions, the other plaintiffs would not by reason thereof be prevented from obtaining injunctive relief, if they were otherwise entitled to it and had no knowledge that the restrictions had been violated by any person other than defendants. (Alderson v. Cutting, (1912) 163 Cal. 503, 506 [126 P. 157, Ann.Cas. 1914A 1].)

[7] The third contention of defendants is that damages cannot be awarded as an alternative when only injunctive relief was sought in the complaint. Their argument is that plaintiffs sought only injunctive relief in the complaint and did not establish any facts upon which the court could award damages. The complaint was labeled “Complaint for Injunction,” did not include a prayer for damages, but did allege that said violations by defendants caused great damage to plaintiffs, and included a prayer for general relief. “The subject matter of an action and the issues involved are determinable from the facts pleaded, rather than from the title or prayer for relief.” (Standard Brands of California v. Bryce, (1934) 1 Cal.2d 718, 721 [37 P.2d 446].) The case was tried upon the theory that the amount of damages was involved. Plaintiffs and defendants called witnesses who testified concerning damages. The trial judge stated just before the case was submitted that he did not know how much he would allow as damages or whether he would make an alternative judgment. At the time the judge made that statement defendants did not indicate in any way that they considered the amount of damages was not involved. The amount of damages693*693 was an issue in the trial. At the beginning of the trial the parties requested the trial judge to view the property involved, and the judge stated he would do so after testimony had been received. At the close of the trial the judge stated that plaintiffs were entitled to a remedy, that he had not looked at the premises and had not indicated “how much he would allow”–whether a stated amount or “an alternative judgment to move the house back” or allow damages, and he would look at the property before he made up his mind. The record does not show that the judge did not view the property, and it will be assumed that he did view it. In the case of Rose v. State of California, (1942) 19 Cal.2d 713 [123 P.2d 505], which was a condemnation case in which the judge determined the amount of damages, it was stated at page 733: “That the trial judge is not bound by the opinion of the witnesses on market value is well settled. … Furthermore, in the instant case the trial judge visited the premises, and the information so obtained ‘is independent evidence that can be taken into consideration in determining the issue of the case.'”

[8] Defendants also argue that the court in awarding $1,000 damages found that plaintiffs’ injury was compensable, and therefore they had an adequate remedy at law and injunctive relief should have been denied. It can be argued with equal force that the fact that injunctive relief was granted was a finding that the injury was not compensable. An alternative judgment was rendered in the case of Carey v. Bowie, (1933) 130 Cal.App. 400 [19 P.2d 1032], which required defendants to remove a part of their dwelling, in order to comply with building restrictions, to a point not less than 4 feet from the property line, or to pay $1,000 damages. On appeal by defendants the judgment was affirmed. The alternative form of the judgment, however, was not discussed in the opinion. The attorney for defendants herein correctly states that it does not appear from the opinion therein that alternative relief was not prayed for. The transcript in the cited case is not available, but the respondent’s brief therein stated, “Plaintiff prayed for a mandatory injunction compelling the removal of the offending addition, for damages in the sum of One Thousand Dollars ($1,000), and for general relief.” It therefore appears that alternative relief was not prayed for in the complaint in the cited case in which an alternative judgment was rendered. It is true that was not a 694*694 case wherein injunctive relief only was sought, but it is also true that alternative relief was not sought therein. The awarding of damages in the present case, however, did not indicate that the injunction should not have been granted. The circumstances in the case at bar were such that the court was required to grant the mandatory injunction. The defendant deliberately proceeded, after notices and protests, to construct his building in violation of the restrictions with full knowledge that he was violating them and in total disregard of the notices and protests of the owners of other lots. The encroachment by defendants within the restricted distance from the property line was not slight, but was great. At one place defendants’ building extended about 12 feet into the restricted area. The evidence shows that the expense of moving the house after the foundation was in would have been between $1,500 and $2,000. Of course, after the house was completed, the expense of moving it would be considerably more. The mandatory injunction having been required by the evidence, and having been granted, the alternative part of the judgment whereby defendants were granted the privilege of paying $1,000 damages in lieu of complying with the restrictions, was therefore a ruling very much in favor of defendants. The position of defendants is, therefore, that they are objecting to a part of the judgment which, under the circumstances, is favorable to them. The plaintiffs have not appealed from that portion of the judgment. It is not necessary, however, to decide herein either of the questions as to the propriety of an alternative judgment for damages or as to the sufficiency of the evidence to support the award of damages. The judgment of injunction was supported by the findings and the evidence, and it was not necessary, as above shown, that any specific amount of damage be proved as a basis for the injunction. The alternative part of the judgment which permits the defendants to evade the injunction by paying $1,000 was not based upon a finding of damages in that amount, for there was no such finding. The absence of such a finding is a sufficient answer to defendants’ contention that the award of damages shows a case where plaintiffs can be adequately compensated in damages and hence no injunction should be granted. [9] The alternative, allowing payment of $1,000, apparently was an act of grace toward the defendants, and was based upon nothing appearing in the findings. If it was an error, it was in favor of defendants. The evidence clearly 695*695 shows, and defendants concede, that it would cost them much more than $1,000 to comply with the injunction. The alternative allowing the payment of damages being in defendants’ favor, they cannot complain of it on this appeal. (2 Cal.Jur. 841; Irvine v. MacGregor, (1928) 203 Cal. 583, 586 [265 P. 218].)

[10] Defendants also contend that they have been deprived of a jury trial upon the issue of damages because the complaint did not include an issue as to damages, and there was no issue upon which they could base a request for a jury. As above stated, the case was tried upon the theory that the issue of damages was involved. Also as above shown, if injunctive relief was the only issue (as defendants contend), proof of actual or substantial injury was not essential. (Joyce v. Krupp, supra.) Defendants did not suggest at any time when the matter of damages was being presented by plaintiffs and themselves that defendants desired a jury trial. Furthermore, when the judge stated at the close of the case that he might allow damages, no indication was made by defendants that they desired a trial by jury if damages were to be allowed. Under such circumstances defendants’ contention that they were deprived of a jury trial cannot be sustained.

The judgment is affirmed.

Shinn, Acting P. J., and Shaw, J. pro tem., concurred.

Keywords: Governing Documents, Statute of Limitations

Laguna Royale Homeowners Association v. Darger

119 Cal.App.3d 670 (1981)

672*672 COUNSEL

Layman, Hanson, Jones & Voss, Rondell B. Hanson and Steven H. Sunshine for Defendants and Appellants.

Feldsott & Lee, Feldsott, Lee & Van Gemert and Martin L. Lee for Plaintiff and Respondent.

Summary by Mary M. Howell, Esq.:

Condominium project’s requirement of association approval for a transfer of membership is not an unreasonable restraint on alienation.  However, the association’s power is not absolute, and in exercising its power to approve or disapprove transfers or assignments association must act reasonably, exercising its power in a fair and nondiscriminatory manner and withholding approval only for a reason or reasons rationally related to the protection, preservation and proper operation of the property and the purposes of association as set forth in its governing instruments.

**End Summary**

673*673 OPINION

KAUFMAN, J.

Defendants Stanford P. Darger and Darlene B. Darger (the Dargers) were the owners of a leasehold condominium^[1] in Laguna Royale, a 78-unit community apartment complex on the ocean front in South Laguna Beach. The Dargers purported to assign three one-quarter undivided interests in the property to three other couples: Wendell P. Paxton and Daila D. Paxton, Keith I. Gustaveson and Elsie Gustaveson, and Keith C. Brown and Geneva B. Brown (collectively the other defendants) without the approval of Laguna Royale Owners Association (Association). Association instituted this action to obtain a declaration that the assignments from the Dargers to defendants were invalid because they were made in violation of a provision of the instrument by which the Dargers acquired the property, prohibiting assignment or transfer of interests in the property without the consent and approval of Association’s predecessor in interest. Following trial to the court judgment was rendered in favor of Association invalidating the assignments from the Dargers to the other defendants. Defendants appeal.

Facts

The Laguna Royale development is built on land leased by the developer from the landowner in a 99-year ground lease executed in 1961. As the units were completed, the developer sold each one by executing a subassignment and occupancy agreement with the purchaser. This document conveyed an undivided 1/78 interest in the leasehold estate for a term of 99 years, a right to exclusive use of a designated unit and one or more garage spaces and a right to joint use of common areas and facilities; it also contained certain restrictions. The restriction pertinent to this action is paragraph 7, which provides in relevant part: “7. Subassignee [the purchaser] shall not assign or otherwise transfer this agreement, 674*674 … nor shall subassignee sublet … without the consent of and approval of Lessee….”^[2]

Upon the sale of all units and completion of the project, the developer entered into an “Assignment Agreement” with the Association, transferring and assigning to the Association all the developer’s rights, powers and duties under the subassignment and occupancy agreements, including inter alia the “right to approve or disapprove assignments or transfers of interests in Laguna Royale pursuant to Paragraph 7 of the Subassignment and Occupancy Agreements.”

In 1965, Ramona G. Sutton acquired unit 41, consisting of some 3,000 square feet, by a subassignment and occupancy agreement with the developer. In 1973 the Dargers purchased unit 41 from the executrix of Mrs. Sutton’s estate.^[3] As owner of a unit in the project, the Dargers automatically became members of the Association and were bound by the Association’s bylaws.^[4]

675*675 The Dargers reside in Salt Lake City, Utah, where Mr. Darger became a vice president of a large banking chain not long after the Dargers acquired their unit at Laguna Royale. The responsibilities of Mr. Darger’s new position made it difficult for them to get away, and they attempted unsuccessfully to lease their unit through real estate agents in Laguna Beach. On October 30, 1973, Mr. Darger wrote to Mr. Yount, then chairman of the board of governors of the Association, in which he stated in part: “It has been suggested that we might sell shares in our apartment to two or three other couples here. These associates would be aware of the restrictions regarding children under 16 living there, as well as the restrictions regarding pets, and would submit themselves to the regular investigation of the Board given prospective purchasers and lessees. I would expect that the apartment will remain vacant most of the time, as now, and not more than one of the families will occupy the apartment at one time.”

By letter dated November 12, 1973, Mr. Yount responded in relevant part: “Following receipt of your letter of October 30, 1973 regarding the possibility of selling shares in your apartment #41, we discussed the matter at the regular meeting of the Board of Governors held on November 10, 1973. [¶] Prior to the meeting we had referred the letter to our attorney, Mr. James Ralston Smith, for Laguna Royale Owner’s Association for his opinion. We received his opinion prior to the meeting and this is quoted as follows: `As to the request of Mr. Darger, as owner of apartment #41, to sell undivided interests in that apartment to other parties, it is my opinion that if such other parties otherwise qualified and indicate no intended use of the apartment other than single family owner’s use, there would be no legal basis to refuse such transfers. However, State law restricts more than four (4) transfers of undivided interests, without qualifying as a subdivision.'”

The letter then indicated that a number of members of the board of governors had voiced some objections to multiple ownership of a unit and then stated: “The Board of Governors is quite sympathetic with your problem of being unable to lease your apartment; however, because of the reasons given above, it is our opinion that the multiple ownership would not be beneficial to the other unit owners. We believe that our opinion is shared by the majority of the unit owners of Laguna Royale. [¶] Even in view of the Boards’ [sic] opinion, we would have no alternative except to approve the transfer which you suggested, providing you would comply with the legal opinion of Mr. Smith.”

676*676 Thereafter Mr. Darger discussed the possibility of joint ownership with some of his associates in Salt Lake City and in late 1974 or early 1975 he reached a point where he believed he was ready to proceed. He made an appointment with John Russell Henry, then chairman of the board of governors of the Association, and met with him for the purpose of going over the agreement that Mr. Darger’s Salt Lake City attorney had prepared, to make sure that everything that the board might want to be in the agreement was included from the beginning. Mr. Darger agreed in writing to pay the fees incurred by the board in having the board’s attorney review the instrument.

The document prepared by Mr. Darger’s attorney contemplated five owners,^[5] and the board’s attorney indicated both to the board and Mr. Darger personally that, in his opinion, ownership of undivided interests in the unit by more than four persons would violate California subdivision laws. Thereafter, in a letter dated November 25, 1975, to Mr. Henry, Mr. Darger stated that because of a possible violation of the subdivision laws and for other reasons, “we plan for a total of four shares, including my own.”

Subsequently Mr. Darger received from Mr. Henry a letter dated January 12, 1976, which read in part: “The matter of multiple ownership of Apt. 41 has been studied in depth and detail with our own attorney, and the ultimate decision being that to do so would be contrary to recorded Lease, Subassignment and Occupancy agreement. In this connection you are respectfully requested to refer to Paragraphs 4[^[6]] and 7 of such Agreement which limit use of units solely to residential purposes, without exception, and require written consent by your Board of Governors for any assignment thereof.”

A few days later Mr. Darger received from Mr. Henry another letter dated January 16, 1976, that read in part: “The Board has determined 677*677 that the transfer as you requested would create and impose an undue, unreasonable burden and disadvantage on the other owners’ and residents’ enjoyment of their apartments and the common facilities. Further, your requested transfer would be contrary to and in conflict with the close community living nature of Laguna Royale and would be contrary to the single family character of the private residential purpose to which all apartments are restricted under the recorded Master Lease and the Subassignment and Occupancy Agreement, as well as the By-Laws and House Rules, by which all owners are bound.”

On February 23, 1976, Mr. Darger sent a formal letter request for approval to transfer unit 41 from the Dargers to themselves and the other defendants on condition that “the three new couples subsequently receiv[e] individual approvals after a `Request For Approval Of Sale Or Lease’ form has been filed with the Board for each, and each has submitted to a personal interview by the Board for its consideration.” The letter further requested that if approval was not given, “the Board specify its reasons for denial and indicate how the request made herein differs from the situation of the owners of at least two other units where there is multiple ownership between more than one party who have no family or corporate relationship, [and] in light of the written and verbal approvals for such a transfer of apartment #41 that have been extended by the Board to us over the past two and one half years.”

By a letter from its attorney to the Dargers dated March 16, 1976, Association advised the Dargers that it would not consent to the requested transfer. It was denied that written and verbal approvals had been given the Dargers in the past, and it was stated in relevant part: “The reason the Association will not consent to your requested transfer is that the Board feels it is obligated to protect and preserve the private single family residential character of Laguna Royale, together with the use and quiet enjoyment of all apartment owners of their respective apartments and the common facilities, taking into consideration the close community living circumstances of Laguna Royale. [¶] The Board feels strongly about its power of consent to assignments and other transfers of leasehold interests and considers the protection and preservation of that power to be critical in maintaining the character ofLaguna Royale for the benefit of all owners as a whole. A four family ownership of a single apartment, with the guests of each owner potentially involved, would compound the use of the apartment and common facilities well beyond the normal and usual private single family residential character to the detriment of other owners and would frustrate effective 678*678 controls over general security, guest occupants and rule compliance, as has been the case in the past. [¶] Provision 7 of the Subassignment and Occupancy Agreement, under which all apartment leasehold interests are held, requires the unqualified consent to any transfer. Provision 10 of said agreement provides for the termination of the leasehold interest in the event of a violation of Provision 7, or other breach…. [¶] No apartments in Laguna Royale are held by multiple families in the manner that you have requested. In any event, any consents given by the Association to transfers in the past cannot be regarded as setting any precedent or in any way limiting or impairing the power of the Association to refuse its consent to any present or future transfer. In this regard, the language of Provision 7 of the Subassignment and Occupancy Agreement provides that consent given to any particular transfer shall not operate as a waiver for any other transfer.”

After consultation with legal counsel the Dargers proceeded nevertheless, and on June 11 they executed instruments purporting to assign undivided one-fourth interests in the property to themselves and the other three couples. The instruments were recorded on June 30, and on July 3, 1976, the Dargers informed Association by letter of the transfers inclosing on Association’s forms a separate “Request For Approval Of Sale Or Lease” and financial statement prepared and executed by each of the other couples. These papers show that the other defendants all reside in Salt Lake City, Utah. Each executed request form contains a warranty by the purchaser that if the application is approved no child under 16 years of age “will make residency at this property” and an agreement that the purchaser “will abide by and conform to the terms and conditions of the master lease, … all amendments described in the Subassignment and Occupancy Agreement … and the By-Laws of the LagunaRoyale Owners … Association.”

After unsuccessfully demanding that the other defendants retransfer their purported interests to the Dargers, the Association filed this action.

At trial the testimony confirmed that no more than one family of defendants used the property at a time and, although the matter was not examined in detail, answers to questions by one or more defendants indicated that thirteen-week periods had been agreed upon for exclusive use by each of the four families. It was also indicated that for substantial periods during the year, no use at all was being made of the unit. The evidence also showed that a number of Laguna Royale units were 679*679 owned by several unrelated persons, but that in each case the owners used the unit “as a family.”

No formal findings were made. However, in its notice of intended decision the court stated in relevant part: “The Court concludes that the Subassignment and Occupancy Agreement, … is in law a sublease…. Therefore, Civil Code Section 711 does not apply to void the requirement that consent be given to the transfer of defendant Darger’s interest. The provisions of Title 10 of the Administrative Code, Section 2792.25, as cited in Ritchey v. Villa Nueva Condominiums [(1978)] 81 CA (3) 688, only govern the restrictions of condominiums by laws, and not restrictions that may exist because of leasehold interests. The plaintiff association had the right to approve any transfer of defendant Darger’s interest. The Court finds that the plaintiff association acted reasonably in refusing to grant consent to the proposed transfer byDarger to the other defendants. Plaintiff is entitled to a declaration that the assignments by Darger to the other defendants are invalid. Plaintiff is awarded attorney fees in the amount of $2500.”

Judgment was entered accordingly.

Contentions, Issues and Discussion

Defendants contend paragraph 7 of the subassignment and occupancy agreement prohibiting assignments or transfers without the consent of Association is invalid because it is in violation of their constitutional rights to associate with persons of their choosing (U.S. Const., 1st Amend.; Cal. Const., art. I, § 1), because it constitutes an unlawful restraint on alienation (Civ. Code, § 711), and because it does not comply with a regulation of the Real Estate Commissioner (Cal. Admin. Code, tit. 10, § 2792.25). Failing those, defendants contend finally that if by its finding that Association acted reasonably in refusing to approve the transfers, the court meant to indicate that Association had the duty to act reasonably in withholding consent and did so, that determination is not supported by substantial evidence and is contrary to law.

Association contends that the prohibition against transfer or assignment without its consent is not invalid on any of the bases urged by defendants. It argues primarily that its right to withhold approval or consent is absolute, that in exercising its power it is not required to adhere to a standard of reasonableness but may withhold approval or consent for any reason or for no reason at all. Secondarily, it argues 680*680 that the evidence supports the finding it acted reasonably in disapproving the transfers to the other defendants.

(1a) We reject Association’s contention that its right to give or withhold approval or consent is absolute. We likewise reject defendants’ contention that the claimed right to approve or disapprove transfers is an invalid restraint on alienation because it is repugnant to the conveyance of a fee. We hold that in exercising its power to approve or disapprove transfers or assignments Association must act reasonably, exercising its power in a fair and nondiscriminatory manner and withholding approval only for a reason or reasons rationally related to the protection, preservation and proper operation of the property and the purposes of Association as set forth in its governing instruments. We hold that the restriction on transfer contained in paragraph 7 of the subassignment and occupancy agreement (hereafter simply paragraph 7), thus limited, does not violate defendants’ constitutional rights of association and is not invalid as an unreasonable restraint on alienation. (2a) However, we conclude that in view of the present provisions of Association’s bylaws, its refusal to consent to the transfers to defendants was unreasonable as a matter of law. Accordingly, we reverse the judgment with directions to enter judgment for defendants. Having so concluded and disposed of the appeal it is unnecessary for us to decide whether the Real Estate Commissioner’s regulation, which was not in effect when the subassignment and occupancy agreement here involved was executed, could validly be applied to paragraph 7 or whether, if applied, it would invalidate the provisions of paragraph 7.

As indicated, the initial positions of the parties are at opposite extremes. Association contends that the subassignment and occupancy agreement constitutes a sublease and that under the law applicable to leasehold interests, when a lease contains a provision permitting subletting only upon consent of the lessor, the lessor is under no obligation to give consent and, in fact, may withhold consent arbitrarily. (See, e.g.,Richard v. Degen & Brody, Inc. (1960) 181 Cal. App.2d 289, 298-299 [5 Cal. Rptr. 263]; 4 Miller & Starr, Current Law of Cal. Real Estate, § 27:92, pp. 415-416; see also cases cited in Annot. (1953), 31 A.L.R.2d 831.) Defendants on the other hand contend that the subassignment and occupancy agreement conveys, in essence, a fee,^[7] and that 681*681 under California law when a fee simple interest is granted, any restriction on the subsequent conveyance of the grantee’s interest contained in the original grant is repugnant to the interest conveyed and is therefore void. (See, e.g.,Murray v. Green (1883) 64 Cal. 363, 367 [28 P. 118]; Title Guarantee & Trust Co. v.Garrott (1919) 42 Cal. App. 152, 155 [183 P. 470]; see also 3 Witkin, Summary of Cal. Law (8th ed. 1973) Real Property, § 314, p. 2023.)

(1b) We reject the extreme contentions of both parties; the rules of law they propose, borrowed from the law of landlord and tenant developed during the feudal period in English history (see Green v. Superior Court (1974) 10 Cal.3d 616, 622 [111 Cal. Rptr. 704, 517 P.2d 1168]), are entirely inappropriate tools for use in effecting an accommodation of the competing interests involved in the use and transfer of a condominium. Even assuming the continued vitality of the rule that a lessor may arbitrarily withhold consent to a sublease (but see Note, Effect of Leasehold Provision Requiring the Lessor’s Consent to Assignment (1970) 21 Hastings L.J. 516), there is little or no similarity in the relationship between a condominium owner and his fellow owners and that between lessor and lessee or sublessor and sublessee. Even when the right to the underlying land is no more than an undivided interest in a ground lease or sublease, ownership of a condominium constitutes a statutorily recognized estate in real property (see Civ. Code, § 783 [see fn. 1, ante]), and in our society the right freely to use and dispose of one’s property is a valued and protected right. (U.S. Const., Amends. 5 and 14; Cal. Const., art. I, § 7, subd. (a); see 5 Witkin, Summary of Cal.Law (8th ed. 1974) Constitutional Law, § 273, p. 3563.) Ownership and use of condominiums is an increasingly significant form of “home ownership” which has evolved in recent years to meet the desire of our people to own their own dwelling place, in the face of heavy concentrations of population in urban areas, the limited availability of housing, and, thus, the impossibly inflated cost of individual homes in such areas.

On the other hand condominium living involves a certain closeness to and with one’s neighbors, and, as stated in Hidden Harbour Estates, Inc. v. Norman (Fla.App. 1975) 309 So.2d 180, 181-182: “[I]nherent in the condominium concept is the principle that to promote the health, 682*682 happiness, and peace of mind of the majority of the unit owners since they are living in such close proximity and using facilities in common, each unit owner must give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned property.” (See also White Egret Condominium v. Franklin (Fla. 1979) 379 So.2d 346, 350; Seagate Condominium Association, Inc. v. Duffy (Fla.App. 1976) 330 So.2d 484, 486.) Thus, it is essential to successful condominium living and the maintenance of the value of these increasingly significant property interests that the owners as a group have the authority to regulate reasonably the use and alienation of the condominiums.

Happily, there is no impediment to our adoption of such a rule; indeed, the existing law suggests such a rule. In the only California appellate decision of which we are aware dealing with the problem of restraints on alienation of a condominium, Ritcheyv. Villa Nueva Condominium Assn., supra, 81 Cal. App.3d 688, 695 [146 Cal. Rptr. 695], the court upheld as a reasonable restriction on an owner’s right to sell his unit to families with children, a duly adopted amendment to the condominium bylaws restricting occupancy to persons 18 years and over. And, of course, Civil Code section 1355 pertaining to condominiums expressly authorizes the recordation of a declaration of project restrictions and subsequent amendments thereto, “which restrictions shall be enforceable equitable servitudes where reasonable, and shall inure to and bind all owners of condominiums in the project.”

Reasonable restrictions on the alienation of condominiums are entirely consistent with Civil Code section 711 in which the California law on unlawful restraints on alienation has its origins.^[8] The day has long since passed when the rule in California was that all restraints on alienation were unlawful under the statute; it is now the settled law in this jurisdiction that only unreasonable restraints on alienation are invalid. (Wellenkamp v. Bank of America (1978) 21 Cal.3d 943, 948-949 [148 Cal. Rptr. 379, 582 P.2d 970]; La Sala v. American Sav. & Loan Assn. (1971) 5 Cal.3d 864, 878-879 [97 Cal. Rptr. 849, 489 P.2d 1113]; Coast Bank v. Minderhout (1964) 61 Cal.2d 311, 316 [38 Cal. Rptr. 505, 392 P.2d 265], overruled to the extent inconsistent in Wellenkamp v. Bank of America, supra, 21 Cal.3d at p. 953.)

683*683 Nor does the right of Association reasonably to approve or disapprove the assignment or transfer of the Dargers’ ownership interest violate defendants’ constitutional right to associate freely with persons of their choosing. Preliminarily, there is considerable doubt of whether the actions of Association constitute state action so as to bring into play the constitutional guarantees. (Cf. Moose Lodge No. 107 v. Irvis (1972) 407 U.S. 163, 173 [32 L.Ed.2d 627, 637, 92 S.Ct. 1965]; Newby v.Alto Riviera Apartments (1976) 60 Cal. App.3d 288, 293-295 [131 Cal. Rptr. 547]; see generally 5 Witkin, Summary of Cal. Law (8th ed. 1974) Constitutional Law, § 338, pp. 3631-3632.) (3) In any event, however, the constitutionally guaranteed freedom of association, like most other constitutionally protected rights, is not absolute but is subject to reasonable restriction in the interests of the general welfare. (Village of Belle Terre v. Boraas (1974) 416 U.S. 1, 9 [39 L.Ed.2d 797, 804, 94 S.Ct. 1536, 1541]; White Egret Condominium v. Franklin, supra, 379 So.2d at pp. 349-351.) Moreover, it may be persuasively argued that if any constitutional right is at issue it is the due process right of an owner of property to use and dispose of it as he chooses. (See generally 5 Witkin, Summary of Cal. Law (8th ed. 1974) Constitutional Law, § 273, p. 3563.) (4) And, of course, property rights are subject to reasonable regulation to promote the general welfare. (Home Building & Loan Asso. v. Blaisdell(1934) 290 U.S. 398, 428, 434-436 [78 L.Ed. 413, 423, 426-428, 54 S.Ct. 231];Sonoma County Organization of Public Employees v. County of Sonoma (1979) 23 Cal.3d 296, 305 [152 Cal. Rptr. 903, 591 P.2d 1]; In re Marriage of Bouquet (1976) 16 Cal.3d 583, 592 [128 Cal. Rptr. 427, 546 P.2d 1371].) Finally, any determination of the validity or invalidity of Association’s right to approve or disapprove assignments or transfers of the Dargers’ interest will of necessity impinge upon someone’s constitutional freedom of association. A determination that the power granted the Association is invalid would adversely affect the constitutional right of association of the remaining owners at least as much as a contrary determination would affect the same right of the Dargers. (Cf. Presbytery of Riverside v. Community Church of Palm Springs (1979) 89 Cal. App.3d 910, 925 [152 Cal. Rptr. 854].)

Having concluded that a reasonable restriction on the right of alienation of a condominium is lawful, we must now determine whether Association’s refusal to approve the transfer of the Dargers’ interest to the other defendants was reasonable in the circumstances of the case at bench. (1c) The criteria for testing the reasonableness of an exercise of such a power by an owners’ association are (1) whether the reason 684*684 for withholding approval is rationally related to the protection, preservation or proper operation of the property and the purposes of the Association as set forth in its governing instruments and (2) whether the power was exercised in a fair and nondiscriminatory manner. (Cf. Pinsker v. Pacific Coast Society of Orthodontists (1974) 12 Cal.3d 541, 550 [116 Cal. Rptr. 245, 526 P.2d 253]; Lewin v.St. Joseph Hospital of Orange (1978) 82 Cal. App.3d 368, 388 [146 Cal. Rptr. 892];Ascherman v. Saint Francis Memorial Hosp. (1975) 45 Cal. App.3d 507, 511-512 [119 Cal. Rptr. 507].) Another consideration might be the nature and severity of the consequences of application of the restriction (e.g., transfer declared void, estate forfeited, action for damages). (See 3 Witkin, Summary of Cal. Law (8th ed. 1974) Real Property, § 315, p. 2025; Rest. Property, §§ 404-406.)

As to the last observation, a potential problem in the case at bench was avoided by the nature of the relief granted in the court below. Although in its complaint Association asserted a right to terminate the Dargers’ ownership interest because of their assignments without board approval and although there is some reference in the briefs to a “forfeiture,” the judgment of the trial court simply invalidated the transfers to the other defendants, leaving the Dargers as the owners of the unit as they were at the outset. If Association’s disapproval of the transfers were otherwise reasonable, we would find nothing unreasonable in the invalidation of the transfers.

To determine whether or not Association’s disapproval of the transfers to the other defendants was reasonable it is necessary to isolate the reason or reasons approval was withheld. Aside from the assertion that it had the power to withhold approval arbitrarily, essentially three reasons were given by the Association for its refusal to approve the transfers: (1) the multiple ownership of undivided interests; (2) the use the defendants proposed to make of the unit would violate a bylaw restricting use of all apartments to “single family residential use”; and (3) the use proposed would be inconsistent with “the private single family residential character of Laguna Royale, together with the use and quiet enjoyment of all apartment owners of their respective apartments and the common facilities, taking into consideration the close community living circumstances of Laguna Royale.” As to (3) Association asserted: “A four family ownership of a single apartment, with the guests of each owner potentially involved, would compound the use of the apartment and common facilities well beyond the normal and usual private single 685*685 family residential character to the detriment of other owners and would frustrate effective controls over general security, guest occupants and rule compliance, …” We examine each of these reasons in light of the indicia of reasonableness referred to above.

Insofar as approval was withheld based on multiple ownership alone, Association’s action was clearly unreasonable. In the first place, multiple ownership has no necessary connection to intensive use. Twenty, yea a hundred, persons could own undivided interests in a condominium for investment purposes and lease the condominium on a long-term basis to a single occupant whose use of the premises would probably be less intense in every respect than that considered “normal and usual.” Secondly, the Association bylaws specifically contemplate multiple ownership; in section 7 of article III, dealing with voting at meetings, it is stated: “Where there is more than one record owner of a unit, any or all of the record owners may attend [the meeting] but only one vote will be permitted for said unit. In the event of disagreement among the record owners of a unit, the vote for that unit shall be cast by a majority of the record owners.” Finally, the evidence is uncontroverted that a number of units are owned by several unrelated persons. Although those owners at the time of trial used their units “as a family,” there is nothing in the governing instruments as they presently exist that would prevent them from changing the character of their use.

We turn to the assertion that the use of the premises proposed by defendants would be in violation of section 1 of article VIII of the bylaws which provides: “All apartment unit uses are restricted and limited to single family residential use and shall not be used or occupied for any other purpose” and paragraph 4 of the subassignment and occupation agreement which provides: “The premises covered hereby shall be used solely for residential purposes, …” (5) The term “single family residential use” is not otherwise defined, and if there is any ambiguity or uncertainty in the meaning of the term it must be resolved most favorably to free alienation. (Randol v. Scott (1895) 110 Cal. 590, 595-596 [42 P. 976]; Burns v. McGraw (1946) 75 Cal. App.2d 481, 485-486 [171 P.2d 148]; Riley v. Stoves (1974) 22 Ariz. App. 223 [526 P.2d 747, 749].) Actually, there is no evidence that defendants proposed to use the property other than for single family residential purposes. It is uncontroverted that they planned to and did use the property one family at a time for residential purposes. Thus, the proposed use was not in 686*686 violation of the restriction to single family residential use.^[9] (White Egret Condominium v. Franklin, supra, 379 So.2d at p. 352.)

(2b) The reasonableness of Association’s disapproval of the transfers from the Dargers to the other defendants must stand or fall in the final analysis on the third reason offered by the Association for its action: the prospect that defendants’ proposed use of the apartment and common facilities would be so greatly in excess of that considered “usual and normal” as to be inconsistent with the quiet enjoyment of the premises by the other occupants and the maintenance of security.^[10]

There can be no doubt that the reason given is rationally related to the proper operation of the property and the purposes of the Association as set forth in its governing instruments. The bylaws provide that “[t]he purpose of the Association is to manage and maintain the community apartment project … on a non-profit basis for the benefit of all owners of Laguna Royale.” By subdivision (M)(6) of section 2 of article V of the bylaws the board is empowered to “prescribe reasonable regulations pertaining to … [r]egulating the purchase and/or lease of an apartment to a buyer or sublessee who has no children under 16 years of age that will occupy the apartment temporarily or full time as a resident.” This power is said by the bylaws to be given the board in recognition of “the prime importance of both security and quiet enjoyment of the Apartments owned by each member, and of the common recreational areas….”

We reject defendants’ contention that the Association had established a practice of approving or disapproving transfers solely on the basis of factors relating to the character, reputation and financial responsibility of the proposed transferee. There was testimony that during personal 687*687 interviews with proposed transferees, the board always inquired into the use proposed to be made of the premises.

The difficulty with upholding the Association’s disapproval of the transfers by the Dargers to the other defendants is twofold. First, no evidence was introduced to establish that the intensity or nature of the use proposed by defendants would in fact be inconsistent with the peaceful enjoyment of the premises by the other occupants or impair security. We may take judicial notice as a matter of common knowledge that the use of a single apartment by four families for thirteen weeks each during the year would create some problems not presented by the use of a single, permanent resident family. The moving in and out would, of course, be more frequent, and it might be that some temporary residents would not be as considerate of their fellow occupants as more permanent residents. However, we are not prepared to take judicial notice that the consecutive use of unit 41 by these four families, one at a time, would be so intense or disruptive as to interfere substantially with the peaceful enjoyment of the premises by the other occupants or the maintenance of building security.

Secondly, and most persuasive, a provision of the bylaws, subdivision (A) of section 1 of article VIII, provides: “Residential use and purpose, as used herein and as referred to in the lease, sub-assignment and occupancy agreement pertaining to and affecting each apartment unit in LAGUNA ROYALE shall be and is hereby deemed to exclude and prohibit the rental of any apartment unit for a period of time of less than ninety (90) days, as it is deemed and agreed that rentals of apartment units for less than ninety (90) day periods of time are contrary to the close community apartment character of LAGUNA ROYALE; interfere with and complicate the orderly administration and process of the security system and program and maintenance program of LAGUNA ROYALE, and interfere with the orderly management and administration of the common areas and facilities of LAGUNA ROYALE. Accordingly, no owner shall rent an apartment unit for a period of time of less than ninety (90) days.”

The point is self-evident: under the present bylaws the Dargers could effect the sameuse of the property as is proposed by defendants by simply leasing to each couple for a period of 90 days each year.^[11]

688*688 Under these circumstances we are constrained to hold that board’s refusal to approve the transfers to the other defendants on the basis of the prospect of intensified use was unreasonable as a matter of law.

Our conclusion that Association’s disapproval of the transfers by the Dargers to the other defendants must be characterized as unreasonable as a matter of law disposes of the appeal, and it is unnecessary for us to deal with the applicability of the regulation of the Real Estate Commissioner which provides that bylaw restrictions on sale or lease of a condominium must include uniform, objective standards not based upon “the race, color, religion, sex, marital status, national origin or ancestry of the vendee or lessee,” and which, in effect, requires an owners’ association to buy out the owner’s interest on the terms of the proposed sale if the Association disapproves “a bona fide offer by a person who does not meet the prescribed standards.” (Cal. Admin. Code, tit. 10, § 2792.25, subds. (a), (b); seeRichey v. Villa Nueva Condominium Assn., supra, 81 Cal. App.3d at pp. 694-695.) We do observe that the transfers from the Dargers were not disapproved on the basis that the other defendants are not “person[s] who [do] not meet the prescribed standards.” We further observe that the regulation in question was apparently first filed in January 1976 whereas the subassignment and occupancy agreement involved in the case at bench was executed by the defendants’ predecessor in interest in 1965 and assigned to the Dargers in 1973. Finally, we observe that insofar as the necessity of exercising the right to approve or disapprove sales or leases on the basis of uniform, objective standards is concerned, our decision is substantially in accord with the commissioner’s regulation.

Disposition

The judgment is reversed with directions to the trial court to enter judgment for the defendants.

McDaniel, J., concurred.

GARDNER, P.J.

I dissent.

Stripped to its essentials, this is a case in which the other owners of a condominium are attempting to stop the owner of one unit from embarking 689*689 on a time sharing enterprise. The majority properly conclude that the owners as a group have the authority to regulate reasonably the use and alienation of the units. The majority then conclude that the board’s refusal to approve this transfer was unreasonable as a matter of law. To the contrary, I would find it to be entirely reasonable and would affirm the judgment of the trial court.

The use of a unit on a time sharing basis is inconsistent with the quiet enjoyment of the premises by the other occupants. Time sharing is a remarkable gimmick. P.T. Barnum would have loved it. It ordinarily brings enormous profits to the seller and in this case would bring chaos to the other residents. Here we have only 4 occupants but if this transfer is permitted there is nothing to stop a more greedy occupant of a unit from conveying to 52 or 365 other occupants.

If as an occupant of a condominium I must anticipate that my neighbors are going to change with clocklike regularity I might just as well move into a hotel — and get room service.

Respondent’s petition for a hearing by the Supreme Court was denied August 26, 1981.

[1] A “condominium” is defined in Civil Code section 783, which reads in part as follows: “A condominium is an estate in real property consisting of an undivided interest in common in a portion of a parcel of real property together with a separate interest in space in a residential, industrial or commercial building on such real property, such as an apartment, office or store … [¶] Such estate may, with respect to the duration of its enjoyment, be either (1) an estate of inheritance or perpetual estate, (2) an estate for life, or (3) an estate for years, such as a leasehold or a subleasehold.” (For a general discussion of condominiums, see Hanna, Cal. Condominium Handbook (1975); Comment,Community Apartments: Condominium or Stock Cooperative? (1962) 50 Cal.L.Rev. 299; Comment,Fee in Condominium (1964) 37 So.Cal.L.Rev. 82.)

[2] In full, paragraph 7 reads: “Subassignee shall not assign or otherwise transfer this agreement, or any right or interest herein, or in or to any of the buildings and improvements on the leased premises nor shall subassignee sublet said premises or any part thereof without the consent and approval of Lessee, and no assignment or transfer, whether voluntary or involuntary, by operation of law, under legal process or proceedings, by assignment for benefit of creditors, by receivership, in bankruptcy, or otherwise, and no such subletting shall be valid or effective without such consent and approval. Should Lessee consent to any such assignment, transfer or subletting, none of the restrictions of this article shall be thereby waived and the same shall apply to each successive encumbrance, assignment, transfer or subletting hereunder and shall be severally binding upon each and every assignee, transferee, subtenant and other successor in interest of subassignee. [¶] The death of subassignee shall not be deemed to effect a transfer of this agreement within the meaning of this paragraph, but the right of the successors in interest of subassignee to use and occupy the subject premises shall be subject to approval of lessee as in the case of a voluntary assignment by subassignee.”

[3] The transfer was accomplished through an assignment and assumption agreement, not disputed by the parties or in issue on appeal.

[4] Article II, section 2 of the bylaws provides: “Section 2. Ownership. [¶] A person shall be considered to become an owner of a unit for purposes of membership in the Association upon recordation of a Subassignment and Occupancy Agreement that has been approved by the Board of Governors, by which the person acquires an undivided 1/78th interest in the leasehold covering Laguna Royale, plus the exclusive right to use and occupy an apartment to be used as a residence.

Article VII of the bylaws provides: “Section 1. By-Laws a contract. [¶] These By-Laws shall constitute a binding contract among the owners of units in Laguna Royale…. Section 2. Assigns. [¶] These By-Laws shall inure to the benefit of and be binding upon the heirs, grantees, successors, assigns, … who agree to be bound by these By-Laws.”

[5] Apparently title to the unit would have been transferred to a trustee for the benefit of the five beneficial owners.

[6] Paragraph 4 of the subassignment and occupancy agreement reads: “The premises covered hereby shall be used solely for residential purposes, and no sign of any kind shall be displayed in or upon any portions of said building. Subassignee shall not use or suffer or permit any person to use said premises, or any portion thereof, for any purpose tending to injure the reputation thereof, or to disturb the neighborhood or occupants of adjoining property, or to constitute a nuisance, or in violation of any public law, ordinance or regulation.”

[7] It is unclear to us how the subassignment and occupancy agreement could convey a fee interest when the entire interest in the land underlying the development is only a 99-year ground lease. It would appear that defendants’ argument more appropriately ought to be that once consent was given pursuant to the subassignment and occupancy agreement to the transfer from the estate of Ramona Sutton to the Dargers, the rule in Dumpor’s Case (1578) 76 Eng.Rep. 1110, became applicable and that thereafter no consent to any further assignment was required. (See 3 Witkin, Summary of Cal. Law (8th ed. 1973) Real Property, § 491, p. 2170.)

[8] Civil Code section 711 reads: “Conditions restraining alienation, when repugnant to the interest created, are void.”

[9] In the trial court counsel for Association argued that “single family residential use” meant the same thing as “single family residential” customarily found in zoning ordinances, typically in connection with the zoning designation R-1. We cannot conceive a decision that the ownership of a private dwelling in an R-1 zone by four families to be used by each family thirteen weeks each with no use being made by more than one family at any time would be a use in violation of the R-1 zoning. We note also that our conclusion is in accord with the opinion originally expressed by the attorney for the Association that under the existing governing instruments there was nothing the board could do legally to prevent multiple ownership if the interests were no smaller than quarter interests.

[10] It is probable that this was the principal reason Association refused to approve the transfers. Defendants’ proposed use of the unit has been characterized from time to time during these proceedings as “time sharing.”

[11] We note that on the form supplied by the board to be filled in and executed by proposed purchasers or lessees, it is indicated that no lease less than six months in duration will be approved. While the board is authorized by the bylaws to promulgate regulations concerning sales and leases of the units, its regulations must be consistent with the bylaws and cannot supersede or, in effect, amend a provision of the bylaws. The bylaws provide that they may be amended only by majority vote of the owners.

Keywords: Governing Documents, Enforcement