Updated June 8, 2003
American Homeowners Resource Center (AHRC)
Interest Communities: Private Governments and the Public Interest , Barton
& Silverman, eds, Institute of Governmental Studies Press, Univ of
California, Berkeley, 1994
America: Gated Communities in the United States , Blakely
& Synder, Brookings Institute, 1999
Homeowners Associations and the Rise of Residential Private Government ,
Dr. Evan McKenzie , Yale University Press, 1994
The California Court of Appeal ruled CID CC&RS are contracts.
State action may be found when private individuals or groups are endowed with governmental powers or functions because they in turn become state agencies or instrumentality's
Surfside 84 Condominium Council of Unit
Owners v. Mullen, Court of Special Appeals of Maryland, No. 495 (Sept 1984)(not
Found that lien procedure of statute (of 1984) constitutes state action and that procedural due process violations occured since statute did not require proper notice and hearing.
Golden Sands Club Condominium, Inc v.
Harry Waller, 545 A.2d 1332 (1988) Court of Appeals of Maryland
Questions of due process with respect to notice and a hearing relating to condo liens
Lugar v. Edmondson
Oil Co., Inc, 457 US 922 (1982) --
Case concerns relationship between state actors
and violations of 14th Amendment; "color of law" remedies for
violation of constitutional rights per 42 USC sect. 1983
Shelly v. Kraemer,
334 U.S. 1 (1948), -- concern state
actions in regard to judicial actions that enforce certain restrictive
covenants of the CC&RS that create homeowner associations.
Commonwealth of Virginia v. Rives, 1880, 100 U.S. 313, 318 - that a State may act through different agencies, -either by
its legislative, its executive, or its judicial authorities; and the prohibitions
of the amendment [14th Amendment] extend to all action of the State denying
equal protection of the laws
Pardee Construction Company v. Ivan
Ernesto Rodirguiz et al, Super. Ct. No. GIC769966) The
Superior Court of San Diego County, D039273
Issues on unconscionable contracts, adhesion contracts and good public
policy (not directly involving HOA)
whereby the Virginia Supreme Court held
that the power to fine is a governmental power
We affirm the judgment in its entirety, finding that the restrictions contained in the amended declaration constitute enforceable equitable servitudes that are presumptively reasonable under Civil Code section 1354
Ironwood Owners Ass'n IX v. Solomon, 178 Cal. App. 3d 766, 772, 224 Cal. Rptr. 18 (1986):
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."
Cohen v. Kite Hill Community Ass'n, 142 Cal. App. 3d 642, 651, 191 Cal. Rptr. 209 (1983)
The business and governmental aspects of the association and
the association's relationship to its members clearly give rise to a special
sense of responsibility upon the officers and directors.. This special
responsibility is manifested in the requirements of fiduciary duties and the
requirements of due process, equal protection, and fair dealing.'"
Words in the CC&Rs to be taken as to
their common everyday meanings
A homeowner sued under the FDCPA, alleging that the HOA's
lawyer was a debt collector
We reverse the trial court's declaratory judgment in favor of
the Association. We find that the CC&Rs impose an affirmative duty upon the
Association to enforce the drainage requirements of the CC&Rs, which duty
is not negated by provisions that permit the Association to select among
alternative methods of enforcement.
We interpret written CC&Rs de novo where, as here, there is no extrinsic evidence of the drafter's intent.
We will, if possible, interpret
a contract in such a way as to reconcile and give meaning to all of its terms,
if reconciliation can be accomplished by any reasonable interpretation.
In a case relating to the constitutionality of zoning ordinances, the court states the restrictions on delegating legislative powers and obligations.
MAXWELL v. FIDELITY FINANCIAL SERVICES, 907 P.2d 51 (1995)
substantive unconscionability refers to the actual
terms of the contract, such as: one-sided terms that tend to oppress or unfairly
surprise an innocent party; an overall imbalance in the obligations and rights
imposed by the bargain. The court held that only substantive unconscionability
must be shown.
Broemmer v. Abortion Services of Phoenix, Ltd., 840 P.2d 1013 (1992).
the Arizona Supreme Court defined an adhesion contract as one which is a standardized form offered on a "take it or leave it" basis without the opportunity to bargain. (This case is highly referenced in other court cases across America and is used as a textbook case in many law schools.)
Other cases can be found at the AHRC web site: