CALIFORNIA RIVIERA HOMEOWNERS ASSOCIATION v. HACKEL (1994)

We issued an alternative writ in this matter to resolve the following question:  May a homeowners' association record a notice of violation of covenants, conditions and restrictions (“CC & R's”) in the absence of an accompanying lawsuit when the CC & R's provide that such a notice may be recorded?   We answer this question in the affirmative.

BACKGROUND

Stuart Hackel owns a parcel of real property in the Pacific Palisades area of Los Angeles which is arguably subject to CC & R's recorded by The California Riviera Homeowners Association (“Association”).   The CC & R's prohibit a structure from being erected or maintained closer than 10 feet from the inside property line.  Section 10 of the CC & R's provides that, in the event of breach, Association may record a notice that the CC & R's have been violated.¹

In 1991, Hackel completed a substantial remodel of the house which was on the property.   He later discovered that, on February 3, 1992, Association had recorded a “Notice of Violation of Restrictions” with respect to the property.   The notice indicated that Hackel had failed to comply with the 10–foot setback requirement of the CC & R's.

On December 10, 1992, Hackel filed an action against Association and two of its officers seeking damages for slander of title and requesting injunctive relief.   In his action, Hackel alleges that the CC & R's are invalid, that he is not bound by them, and that Association is estopped from seeking to enforce them.²  Hackel also sought an order determining that Association's notice of violation is not a recordable instrument.

During the course of litigation, Hackel filed a motion for order expunging the notice of violation and for injunctive relief.   At a hearing on October 20, 1993, respondent superior court found that the notice of violation was not a recordable instrument, and granted Hackel's motion.   On October 29, 1993, the notice of violation was ordered expunged.

DISCUSSION

Government Code section 27280, subdivision (a), authorizes “[a]ny instrument or judgment affecting the title to or possession of real property” to be recorded.   Miller and Starr set forth what they characterize as a nonexhaustive list of 99 instruments that may be recorded, the vast majority of which receive specific authorization from statutes other than section 27280, subdivision (a).  (3 Miller & Starr, Current Law of Cal. Real Estate (2d ed. 1989) §§ 8:4–8:5, pp. 275–292.)

Notice of violation of CC & R's is not included in the Miller and Starr list, nor is it mentioned in any statute.³  Thus, absent an agreement of the parties, the only possible authority for recordation is if the notice constitutes the type of document contemplated by section 27280, subdivision (a);  i.e., an instrument affecting title to or possession of real property.

“The term ‘conveyance,’ as used in sections [1213 ⁴ and 1214 ⁵ ] embraces every instrument in writing by which any estate or interest in real property is created, alienated, mortgaged, or encumbered, or by which the title to any real property may be affected, except wills.”  (Civ.Code, § 1215, emphasis added.)   In an early case discussing the Civil Code's provisions on recordation and notice, the Supreme Court observed that the word “ ‘instrument’ ․ will be invariably found to indicate some written paper or instrument signed and delivered by one person to another, transferring the title to or creating a lien on property, or giving a right to a debt or duty.”  (Hoag v. Howard (1880) 55 Cal. 564, 565.)

The venerable Hoag definition of “instrument” was utilized in Brown v. Johnson (1979) 98 Cal.App.3d 844, 849, 159 Cal.Rptr. 675.   There, the plaintiff conveyed real property in exchange for promissory notes without obtaining security for payment of those notes, and recorded a “notice of vendor's lien” with the county recorder.  (Id. at pp. 846–847, 159 Cal.Rptr. 675.)   The Brown court determined that a vendor's lien is a “mere personal privilege” which “must be established by suit”;  it “did not create the lien nor did it affect the title or possession of the property.”  (Id. at p. 851, 159 Cal.Rptr. 675.)   Its recordation would therefore be disregarded.⁶  (See also Rowley v. Davis (1917) 34 Cal.App. 184, 191, 167 P. 162 [grantor's recordation of an amendment to a grant deed stating that the deed was actually intended as a mortgage was not an instrument affecting title and thus did not convey constructive notice to subsequent purchasers].)

Association's defense of Section 10 of the CC & R's is based on Riley v. Bear Creek Planning Committee (1976) 17 Cal.3d 500, 131 Cal.Rptr. 381, 551 P.2d 1213 (“Bear Creek I”) and Bear Creek Planning Com. v. Title Ins. & Trust Co. (1985) 164 Cal.App.3d 1227, 211 Cal.Rptr. 172 (“Bear Creek II ”).   In Bear Creek I, as in this case, a homeowner took the position that his homeowners' association's CC & R's did not apply to him;  the homeowners' association recorded a notice of violation of CC & R's;  and the homeowner responded with a lawsuit against the association.  (17 Cal.3d at pp. 504–505, 131 Cal.Rptr. 381, 551 P.2d 1213.)   Determining only the quiet title portion of the action, the Bear Creek I court found that the homeowner could not be charged with notice of the CC & R's, which therefore were not binding on him.  (Ibid.)

Bear Creek II involved the homeowner's slander of title cause of action, which had been severed in Bear Creek I.   The opinion recounts the facts of the filing of the notice of violation, noting that the homeowners' association had considered filing a lawsuit “but in lieu thereof determined to record a notice of violation, as [its] coffers ․ were at low ebb.”  (164 Cal.App.3d at p. 1234, 211 Cal.Rptr. 172.)   The homeowners' association tendered defense of the action to its title company.   The title company refused the tender, and the homeowner prevailed at trial.  (Id. at pp. 1235–1236, 211 Cal.Rptr. 172.)   The legal issues in Bear Creek II are limited to questions of the title company's obligation to indemnify the homeowners' association for the judgment in favor of the homeowner.  (Id. at pp. 1236–1250, 211 Cal.Rptr. 172.)

We find nothing in the Bear Creek77111069

We are somewhat troubled by the procedure embodied in Section 10 of Association's CC & R's.   In the absence of a pending lawsuit, a homeowners' association's notice of violation of CC & R's purports to do nothing more than place a cloud on the homeowner's title.⁷  Because recordation of a document may be accomplished for a nominal fee, a notice of violation is viewed as an efficient and economical method for a homeowners' association to enforce its CC & R's.⁸  But as a practical consequence, it shifts to the homeowner the burden of initiating legal action and carrying the laboring oar in the determination of the validity of the CC & R's.

Were we to be deciding the question in the abstract, we would have great difficulty in finding legal justification for the recordation of Association's notice of violation.   However, in a notice to the parties requesting additional briefing, we pointed out that Section 10 specifically authorizes recordation of a notice of violation of CC & R's, and sought argument as to the effect of that clear language.

Hackel asserts he is not bound by Section 10 of the CC & R's, and bases his position on what he says are several fundamental rules of law.   The first is that a covenant running with the land or an equitable servitude is not self-enforcing.⁹  (County of Butte v. Bach (1985) 172 Cal.App.3d 848, 867, 218 Cal.Rptr. 613;  7 Miller & Starr, Current Law of Cal. Real Estate, supra, § 22:17, p. 569.)   Hackel's position begs the question.   The precise purpose of Section 10 is to permit Association to record a notice of violation independent of any judicial action.   Indeed, the notice is a prerequisite of such an action.   Hackel has not suggested, nor have we encountered, any law which would invalidate a covenant which contains a mechanism for self-enforcement.   Accordingly, we decline to do so.

Hackel next relies on the rule that CC & R's may not be enforced in a way that violates statutory or common law.  (Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 499, fn. 6, 229 Cal.Rptr. 456, 723 P.2d 573.)   As stated above, as an abstract matter, statutory authorization for the recordation of a notice of violation is open to question.   Here, however, we have the overlay of CC & R's which specifically provide for recordation of such a notice.   Given the imprecise definition of what documents may be recorded, we can find no reason in law or logic to impair an agreement to permit the recordation of a notice of violation of CC & R's, even if such a document does not fit precisely into the realm of documents which are typically recorded.

Finally, Hackel refers to various other rules affecting CC & R's, such as that unreasonable covenants will not be enforced (Civ.Code, § 1354) and that, in seeking to enforce CC & R's, homeowners' associations must act in good faith (see Ironwood Owners Assn. IX v. Solomon (1986) 178 Cal.App.3d 766, 772, 224 Cal.Rptr. 18).   While these rules may well be applicable to the ultimate determination of whether the 10–foot setback requirement of the CC & R's may be enforced against Hackel, they are irrelevant to our determination that Section 10 of the CC & R's authorizes the notice of violation to be recorded in this case.

DISPOSITION

Let a peremptory writ of mandate issue commanding the trial court to vacate its order granting Stuart Hackel's motion to expunge the notice of violation recorded by The California Riviera Homeowners Association on the ground that such a notice is not recordable, and enter a new and different order denying said motion.   The parties are to bear their own costs in this proceeding.

FOOTNOTES

1.   Section 10 further provides that notice of the recordation shall be mailed to the property owner, and that recordation and notice are prerequisites to the commencement of legal action for violation of the CC & R's.

2.   This opinion assumes, but does not resolve, the issue of whether the CC & R's may be enforced against Hackel.

3.   Government Code section 66499.36 is the only statute we have found which authorizes a “notice of violation.”   However, because it concerns a notice of violation of the Subdivision Map Act, which may be recorded only by a city or county, it is plainly inapplicable here.

4.   As pertinent here, Civil Code section 1213 provides that recordation of a conveyance of real property constitutes constructive notice of the conveyance to subsequent purchasers and mortgagees.

5.   As pertinent here, Civil Code section 1214 provides that an unrecorded conveyance is void against any subsequent purchaser whose conveyance is first duly recorded.

6.   “It is settled that an instrument which is recorded but which is not authorized to be recorded and given constructive notice effect by statute does not impart constructive notice to subsequent purchasers.   [Citations.]”  (Id. 98 Cal.App.3d at p. 849, 159 Cal.Rptr. 675.)

7.   A “Summary of Restrictions” prepared in 1960 by Association explains that Association “desires as far as possible to avoid actual litigation,” but acknowledges that recordation of a notice of violation would be “throwing a cloud upon an owner's title” and “may make it very difficult for the owner to obtain a building loan or a mortgage or to sell the property in question.”

8.   This was apparently the motivation for the Bear Creek Planning Committee, which found its “coffers ․ at low ebb,” to record a notice of violation of CC & R's rather than file its own lawsuit.  (Bear Creek Planning Com. v. Title Ins. & Trust Co., supra, 164 Cal.App.3d at p. 1234, 211 Cal.Rptr. 172.)Similarly, in Hanna, California Condominium Handbook (Bancroft–Whitney 1986) Supplement, section 14.59, pages 178–179, it is suggested that a condominium association should record a notice of nonconformance as soon as it becomes aware of an unauthorized improvement.   The author further advised that, if the county recorder refuses the document on the ground that it is not authorized, the association should explain that such a notice is nowhere specifically prohibited.

9.   For purposes of this opinion, it makes no difference whether Section 10 of the CC & R's is considered a covenant or an equitable servitude.  (See, generally, 7 Miller & Starr, Current Law of Cal. Real Estate, supra, § 22:1, pp. 520–524.)

MASTERSON, Associate Justice.

SPENCER, P.J., and MIRIAM A. VOGEL, J., concur.