Covenants that Run with the Land II; Common Interest Communities - April 25

Question 1

What are common interest communities? (Barros)

Answer 1

Common interest communities are communities that are governed by a set of recorded covenants that run with the land. (645)

Question 2

What are CC&Rs? (Barros)

Answer 2

Sets of covenants, conditions, and restrictions. (645)

Question 3

What do CC&Rs usually create? (Barros)

Answer 3

The CC&Rs typically create a governing board that has a duty to manage the community and enforce the covenants. (645)

Question 4

What happens in a common interest community governed by a HOA? (Barros)

Answer 4

In a common interest community governed by a homeowners’ association, each resident owns their home in fee simple. The association or a related entity owns the common areas. (646)

Question 5

What happens in a co-op? (Barros)

Answer 5

In a co-op, the cooperative association retains fee simple ownership of the entire structure, including the individual apartments. Each resident owns shares of the co-op entity, and the co-op entity gives the resident the right to occupy her apartment. Co-op residents therefore own shares of an entity rather than real property. (646)

Question 6

In what two ways do cases involving common interest community covenants tend to frame reasonableness? (Barros)

Answer 6

The first approach would ask whether it is reasonable to enforce the covenant against a particular resident in light of that resident’s specific circumstances. The second approach would ask whether it is reasonable to enforce the covenant in light of the overall circumstances of the community. (647)

Question 7

What is the first approach courts use involving common interest community covenants tend to frame reasonableness? (Barros)

Answer 7

The first approach would ask whether it is reasonable to enforce the covenant against a particular resident in light of that resident’s specific circumstances. (647) Minority view.

Ex: In the satellite dish example, this approach would ask whether it is reasonable to enforce the covenant against me in my specific circumstances where none of the neighbors can see the dish.

Question 8

What is the second approach courts use involving common interest community covenants tend to frame reasonableness? (Barros)

Answer 8

The second approach would ask whether it is reasonable to enforce the covenant in light of the overall circumstances of the community. (647) Majority view.

Ex: In the satellite dish example, this approach would ask whether it is reasonable for a community to have a ban on satellite dishes. The fact that no one can see my particular dish would not be relevant.