This is an important Calif. case on CC&Rs and the extent to which your “agreement” to be bound satisfies the waiver of your constitutional rights. Arizona’s HB 2441 – written by CAI — proposes a waiver of access to the courts by homeowners. CAI wants it in law rather than by contract to avoid a similar ruling. As I said before, they have an answer or “out” for anything that they propose, which always leads to the courts and $$$$ for them. And, Arizona’s HB 2717 had a restriction on incentives for HOA attorneys to run to the courts on every little thing — cut the fee awards to the them — rather than the HOA and homeowner trying to work it out first. It has been removed by the sponsor.
Here’s a few quotes from the California opinion, emphasis added.
Treating CC&R’s as a contract such that they are sufficient to waive the right to trial by jury does not comport with the importance of the right waived. CC&R’s are notoriously lengthy, are adhesive in nature, are written by developers perhaps years before many owners buy, and often, as here with regard to the waiver of trial by jury, cannot be modified by the association. Further, the document is not signed by the parties.” (Treo, supra, 166 Cal.App.4th at pp. 1066–1067.)
CC&R’s are generally, as here, adhesive and unilateral and those bound by their terms may only have constructive notice of those terms and no contractual relationship with the developer who drafted the CC&R’s.
(This case focuses on the narrower question of waiver of jury trial).
Source: Villa Vicenza v. Nobel Court Dev., 191 Cal. App. 4Th 963 (Cal. App. 4th Dist. Jan. 1, 2011).