Legal Question in Real Estate Law in California

Re: CC&R's

Your question cannot be completely and satisfactorily answered within the scope of a LawGuru reply because the law is somewhat complex. However, I can give you a few general pointers.

First, CC&Rs may be divided into two general classes according to their permanence. The less-permanent class are in the nature of contracts between the original parties, i.e. the persons who owned the land and entered into the CC&Rs in the first place. When these parties no longer own the land, the new owners are generally not subject to the CC&Rs.

The more permanent type of CC&Rs are said to 'run with the land' and are by their legal nature binding on successive owners and not just the parties who agreed to them and "signed on" in the first place.

Whether particular CC&R's fall into one category or the other depends on several factors such as notice, intent and the degree to which the CC&Rs "touch and concern" the land itself. All of these (and other) criteria are very technical and require an experienced attorney to analyze. By the way, the category may also affect the remedy (whether specific enforcement or money damages alone, etc.)

In addition, it is possible for CC&Rs to become unenforceable in other ways. These include changed circumstances and waiver. Possibly the long period of non-enforcement through lack of a HOB would amount to a waiver, but don't count on it.

If an accurate and reliable answer is important to you, you will need an opinion from a real estate attorney who is quite experienced in CC&Rs in your county. It would be necessary for him to review all the circumstances including number of ownership changes since the CC&Rs were placed into effect, intent of the CC&Rs, and several other factors in order to give you a reliable answer.