Will I get penalized ?

Bankruptcy and Debt 5 views 3 answers
Hi. I bought my condo oct 2012 and when wanted to rent it HOA told me only 25% of units in this community can be rented and has already reached the limit so if I want to rent I have to wait in waiting list ! I said there isn't such a thing cuz I own this condo then they showed me a little section in HOA book which I had clearly missed . Now I wanna rent my unit because Im moving for my Job. What will be the consequences ? What can HOA do? It seems unreal that HOA has such a non sense little law going on and no one told me and I didn't the HOA well so I missed it . Is this even legal?can I have a letter or some thing that says I'm moving for my job ? Can they take legal Action ? Whats the worse that can happen if I rent my unit out ?will they make me sell my unit ..? Etc? Thank you stella

Attorney Answers

3
Joseph Dane ·
This isn't my field of law, but your question isn't categorized, so I've put it in the appropriate category so an attorney that practices HOA/real estate law will see it and hopefully respond.
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Janet Spiro MartinFranchise LawyerMission Viejo, CA ·
These provisions are not uncommon, and it was probably not brought to your attention since you intended to buyer it as owner occupied, so yes they can fine you and keep fining you if you ignore them since it will be an HOA violation; my suggestion is to be conciliatory, not like the tone here you display in your post, and basically beg for an exception due to extenuating circumstances, because it would be worse to leave the unit vacant which can attract vandalism, squatters and worse; you should make your case at a board meeting in this way why it would benefit the HOA in general not to have your unit vacant. If that dosn't work, you might have to consider selling. If you want to know what the penalty is, don't ask, read the HOA documents and just know they can increase the penalty when ever they want, and if you don't pay ultimately they can put a lien on the property Better to work this out VERY amicably. .... sorry I don't have any other good ideas.
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Matthew Plaxton ·
California courts have recognized a HOA’s authority to impose reasonable rental restrictions: “Reasonable restrictions on alienation of condominiums are entirely consistent with Civil Code section 711 in which the California law on unlawful restraints on alienation has its origins. 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. (Laguna Royale Owners Assn. v. Darger (1981) 119 Cal.App.3d 670, 682.) “The power to regulate pertains to a wide spectrum of activities, such as the volume of playing music, hours of social gatherings, use of patio furniture and barbecues, and rental of units.” (Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, FN 6.) Determining whether a rental restriction is “reasonable” will depend upon several factors including (1) the degree to which the restriction is “rationality related to the protection, preservation and proper operation of the property and the purposes” of the association, and (2) whether the restriction is “exercised in a fair and nondiscriminatory manner.” (Laguna Royale, at 683-684.) When an association’s governing documents are amended to incorporate additional property use restrictions, California courts have traditionally held that such restrictions are not only binding upon future homeowners within the association’s development, but current homeowners as well. (Villa De Las Palmas HOA v. Terifaj (2004) 33 Cal.4th 73, 83.) However, as a result of legislation that took effect in 2012, any provision in an association’s governing documents that “prohibits” the renting/leasing of properties is binding only on homeowners who bought into the development after the rental prohibition became effective. (Civ. Code § 4740(a).) By its own terms, Civil Code Section 4740 applies to a provision in a HOA’s governing documents that “prohibits” the rental or leasing of properties within the development. There is an ambiguity in the law as to whether Section 4740 would similarly apply to rental restrictions that do not serve as blanket rental prohibitions (i.e., a restriction allowing rentals provided that they are for terms of at least thirty (30) days). The degree to which both current and future owners are bound to comply with such restrictions remains unclear. In sum, the general consensus is that the HOA may promulgate reasonable rental restrictions. The rental restriction here appears to be reasonable. If you fail to comply with the rental restrictions, the Association can levy fines against you pursuant to a duly noticed hearing. In addition, the Association can bring an action in Superior Court seeking injunctive relief requiring you to comply with the terms of the rental restrictions. Failure to comply with a court order can result in criminal and or civil penalties. By way of compromise, you may want to request IDR with the Association's Board of Directors. During this IDR, explain your situation and advise that you may be willing to pay an increased fee for renting your unit. This will help offset any burdens imposed on the Association by additional renters beyond those permitted under the governing documents.
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