Daily Development for
Wednesday, November 11, 1998
by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
Thanks to Fred Pilot for forwarding a press release on this one:
ASSOCIATIONS; ENFORCEMENT POWERS; ABUSE OF POWER: Association may be liable for pursuing litigation to pursue "unreasonably harsh" position in enforcement of provisions in CC&R's requiring that homeowner maintain the interior of his home in a "clean, sanitary and attractive condition;" because notwithstanding the literal language of the provision, Association's right is limited to reasonable efforts to preserve safety and property values of other homes in the neighborhood.
Cunningham v. Fountain Valley Chateau Blanc Homeowner's Assoc., 1998 WL 761483 (Cal.App.10/30/98).
Plaintiff was a 63 year old retiree with Hodgkin's disease. He acquired a home in the planned unit development in question through an installment land contract arrangement with the Veteran's Administration. The Association's CC&R's included a provision requiring "owners" to "maintain the interiors of their residential units and garages, including the interior wall, ceilings, floors and permanent fixtures and appurtenances in a clean, sanitary and attractive condition." These provisions also gave the Association the right to inspect the interior of the homes to insure compliance.
The triggering event that led to all the ruckus here was a complaint by roofers hired by the Association that they could not maneuver their equipment in the area of Plaintiff's yard because of all the "debris" accumulated there. This, together with complaints from neighbors of content unspecified by the court, led the Association to initiate an inquiry, backed by threat of litigation, which involved a series of inspections of Plaintiff's premises, followed by a series of demands that Plaintiff clean up both the inside and the outside of his premises.
An inspection by the local public fire department was also conducted, and no fire hazard or other legal violation was found.
Nevertheless, the Association pushed ahead with its claims, and the court with gleeful indignation, reports the contents of the Association's positions regarding Plaintiff's residence:
" the association's attorneys wrote a lengthy letter to Cunningham detailing the inadequacies of Cunningham's housekeeping and demanding he undertake a number of actions concerning the interior of his home. He was told to: Clear his bed of all paper and books. Remove paper, cardboard boxes and books from the floor area around his bed and dresser. Remove all boxes and papers not currently in use in the living room and dining room because they increased the risk of fire. Clear all objects, including cardboard boxes, from his interior stairs and stairwells to allow passage. Not use his downstairs bathroom for storage. Maintain a functioning electrical light in his downstairs bathroom."
On top of these demands, the letter contained this statement: "The Association suggests that all outdated clothing that has not been worn in the last five years be removed and/or donated to the Salvation Army or similar organization. This would allow the upstairs bathroom to be used for what [sic ] designed for. Any other remaining clothes could be stored in a walkin closet." The letter further told Cunningham that "[b]ooks that are currently in book shelves, and which are considered standard reading material, can remain in place." It ended by reminding him that the association's attorney fees had reached over $34,000 and were continuing."
When the Association eventually initiated litigation against Plaintiff and the Veteran's Administration to enforce its demands, Plaintiff counterclaimed for damages. The suit against Plaintiff ultimately was settled when Plaintiff agreed not to store gasoline or kerosene on the premises and to provide a means of passage through his garage. The complaint against the Veteran's Administration proceeded to trial, and the jury found for the Veteran's Administration. Plaintiff's counterclaim was bifurcated as to liability and damages. When the jury found for Plaintiff on the issue of liability, the trial court, with sketchy grounds, granted a new trial, and announced that he would continue to grant a new trial if the jury again found the Association liable.
On appeal: held: Reversed. The appeals court viewed the new trial ruling as effectively a ruling for a judgment notwithstanding the verdict, which subject to broader review, and concluded that there was adequate basis for a jury finding in this case. The opinion says nothing about the grounds for the Plaintiff's complaint whether it sounded in tort or contract, abuse of process, or some other notion. A press release prepared by Plaintiff's attorney suggested that the case involved Constitutional violations, but there is no hint of that in the appeals court opinion, and indeed a finding of Constitutional violations would be an extraordinary ruling in a case like this, involving private conduct.
Nevertheless, a few more paragraphs from the richly worded opinion of the appeals court seem appropriate:
"[T]he CC & R's cannot reasonably be read to allow an association to dictate the amount of clutter in which a person chooses to live; one man's old piece of junk is another man's objet d' art. The association's rather highhanded attempt to micromanage Cunningham's personal housekeeping telling him how he could and could not use the interior rooms of his own house clearly crossed the line and was beyond the purview of any legitimate interest it had in preventing undesirable external effects or maintaining property values.
Particularly galling to usand clearly to the jury as well was the presumptuous attempt to lecture Cunningham about getting rid of his old clothes, the way he kept his own bedroom, and the kind of "reading material" he could have. [FN9] To obtain some perspective here, we have the spectacle of a homeowner's association telling a senior citizen suffering from Hodgkin's Disease that, in effect, he could not read in his own bed! [FN10] When Cunningham bought his unit, we seriously doubt that he contemplated the association would ever tell him to clean up his own bedroom like some parent nagging an errant teenager.
If it is indeed true that homeowner's associations can often function "as a second municipal government," then we have a clear cut case of a "nanny state" nanny in almost a literal sense going too far. The association's actions flew in the face of one of the most ancient precepts of American society and AngloAmerican legal culture. "A man's house is his castle" was not penned by anonymous, but by the famous jurist Sir Edward Coke in 1628."
Remanded for a jury trial on damages.
Comment 1: In the past, the editor has weighed in against judicial reinterpretation of clear language of restrictive agreements. Although it is true that some persons moving into restricted communities either don't know or fail to appreciate the impact of such restrictions, it is also true that others might well rely upon them in making their decision and expect the protection that they afford.
Nevertheless, when there is form language about which there is no negotiation, courts ought to have a role in reading such provisions to carry out the overall intent of the parties, and it is unlikely that anyone moving into a restricted community reasonably believes that the Association has a role in policing the interior of a residence, except possibly for health and safety problems of concern to the community.
The private homeowners association is not the government, and there is no reason to treat it as such. It is, after all, a voluntary association. No one has to live there. Consequently, the residents could, by unanimous agreement reflected in their acceptance in the Declaration, authorize the association to do things that are far more intrusive than the government can undertake. But there is still the key question as to whether they indeed have "authorized" intrusive conduct by relatively broad language that is susceptible to the interpretation that the parties intend only reasonably applications of the standards established.
The language quoted from the letters written by Association counsel to Mr. Cunningham here certainly seem to go beyond the pale.
Comment 2: What was the role of the lawyering here? How in the world did the Association run up $34,000 in legal costs before ever entering a courtroom in this matter? Who in the world advised them that it would be a good idea to take this matter to court in the posture that it was then in? Shouldn't the Association have made a much more modest proposal and gone to court on the basis of that?
It is probably fair to say that, in the view of the Association and its lawyers, the true facts of the case tell a very different story than that related by the Court of Appeals here. The trial court's actions seem to suggest that there is another version. But the positions taken by the lawyers for the Association in written communication certainly appear, in the stark light of subsequent judicial review, to have soared over the top and to invite hostile judicial scrutiny. A sobering lesson for us all.
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