Private controls: CC&Rs and common interest developments

Private controls and shared ownership

Covenants, conditions, and restrictions, usually called CC&Rs, are private restrictions on property use. They may regulate building appearance, permitted uses, and obligations supporting shared facilities. They differ from public controls such as zoning: permission from a city does not by itself remove an enforceable private restriction. Review both. Restrictions remain subject to applicable law; a recorded restriction is not valid merely because it appears in a document.

California common interest developments combine separate interests with shared property arrangements. A condominium combines a separately owned unit with an undivided interest in common property. A planned development's separate interest is a separately owned lot, parcel, area, or space. In a community apartment project or stock cooperative, the separate interest is an exclusive occupancy right. Ownership form, rather than architectural appearance, determines the category.

Documents and their priority

The declaration identifies the development, association, and restrictions intended as enforceable equitable servitudes. Bylaws address association governance; operating rules address ongoing operations. California resolves conflicts in this order: law, declaration, articles of incorporation, bylaws, then operating rules. A lower-ranking document cannot defeat a higher-ranking one.

Separate interests and common areas

An owner of a separate interest is a member of the association. Common area is distinct from the separate interests. Exclusive use common area remains common area, even though designated owners have exclusive use. Under California's default rule, a balcony serving one separate interest but outside its boundaries is exclusive use common area unless the declaration provides otherwise. Exclusive use alone does not establish separate ownership or determine all maintenance duties. Review the documents and applicable law.

Limits and changes

California requires boards to remove prohibited discriminatory restrictive covenants without member approval. Associations also cannot impose a general policy banning qualifying household rooftop solar systems or require an association membership vote for those installations. Reasonable provisions concerning approval of systems in common areas, roof maintenance, and installation damage remain possible.

For an ordinary declaration amendment, obtain the required approvals, have the approval certified in an executed and acknowledged writing, and record the amendment in each county containing part of the development. If the declaration specifies no approval percentage, a majority of all members may approve. Special statutory procedures apply to certain amendments. Do not confuse a board's operating rule with an amendment to the declaration.