Question: We live in a seniors-only community. Our board and managers harass disabled owners. I have lymphoma and advanced Barrett’s esophagus; my neighbor has cancer and chronic rheumatoid arthritis. Except for when we get assistance going to doctors and hospitals, we are housebound. The manager comes into our units, calling us “hoarders,” saying, “Hang your clothes up” and asking why do we need these “things”? We are told we “have too much stuff” and should “give it away or trash it.” These “things” are all I own from my entire life. Is this right?

Answer: Your association, the board and its managers/agents continue on that despicable path at their peril.

In a similar case, Robert Cunningham bought an attached home subject to covenants, conditions and restrictions, or CC&Rs, in Chateau Blanc, a Fountain Valley town home community. Neighbor complaints to the homeowner association’s board of fire hazards generated a letter from association lawyers demanding Cunningham not only clear his patio but also open up the interior of his unit. Under threat of litigation, he allowed association representatives to inspect his home. Later, managers returned for another inspection and decided he hadn’t removed enough personal belongings. Another letter threatening litigation arrived, then litigation ensued based on alleged fire and safety hazards arising from “junk and paper” within his home.

HOT PROPERTY: Celebrity and luxury home sales


Housing code and fire inspectors found no such hazardous conditions on the property. Still, the association continued with litigation. Association attorneys wrote another lengthy letter detailing the inadequacies of Cunningham’s housekeeping, demanding that he undertake a number of actions. He was told to clear his bed of all paper and books; remove newspapers, file boxes and books from the floor around his bed and dresser; remove all personal items not used in his living/dining area; clear all objects from his interior stairs; not use his downstairs bathroom for storage; maintain a functioning electrical light in his downstairs bathroom.

The attorney’s letter stated: “The Association suggests that all outdated clothing that has not been worn in the last five years be removed and/or donated to the Salvation Army or similar organization. This would allow the upstairs bathroom to be used for what [sic] designed for. Any other remaining clothes could be stored in a walk-in closet.” It added that “books that are currently in book shelves, and which are considered standard reading material, can remain in place.” It ended by reminding Cunningham the association’s attorney fees had climbed over $34,000 and were continuing to accrue.

Cunningham had Hodgkin’s disease and was representing himself until finding an attorney able to file a cross complaint against the association for violations of the right to privacy, trespass, negligence and breach of contract, predicated on the association’s use of litigation threats to gain entry to his home and force him to throw out various personal belongings. “What the association had characterized as ‘debris’ now had a name: ‘furniture, magazines, books, appliances, bookshelves, plants, bicycles, camping equipment and other personal items,’” according to the 1998 ruling in Cunningham’s favor by the California 4th District Court of Appeal. (The case is Fountain Valley Chateau Blanc Homeowners Assn. v. Dept. of Veterans Affairs, Robert Cunningham, 67 Cal.App.4th 743.)

Justices were incredulous: “In light of those operative facts, it is virtually impossible to say the association acted reasonably. It is true the CC&Rs require ‘owners’ to ‘maintain the interiors of their residential units and garages, including the interior wall, ceilings, floors and permanent fixtures and appurtenances in a clean, sanitary and attractive condition.’ It is also true that they provide for entry by the board ‘when necessary in connection with maintenance, landscaping or construction for which the board is responsible.’”


The court continued, “But these sections of the CC&Rs cannot reasonably be read to allow an association to dictate the amount of clutter in which a person chooses to live; one man’s old piece of junk is another man’s objet d’art. The association’s rather high-handed attempt to micromanage Cunningham’s personal housekeeping — telling him how he could and could not use the interior rooms of his own house — clearly crossed the line and was beyond the purview of any legitimate interest it had in preventing undesirable external effects or maintaining property values.”

Justices stated, “If it is indeed true that homeowners associations can often function as a second municipal government then we have a clear cut case of a ‘nanny state’ — nanny in almost a literal sense — going too far. The association’s actions flew in the face of one of the most ancient precepts of American society and Anglo-American legal culture. ‘A man’s house is his castle…'.”

Mr. Cunningham prevailed and was awarded attorney fees.

There are extremely limited circumstances under which you must allow access to the inside of your unit to a manager/agent or board member. It is simply nobody’s business how you choose to live in your own home.


Zachary Levine, partner at Wolk & Levine, a business and intellectual property law firm, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to Donie Vanitzian JD, P.O. Box 10490, Marina del Rey, CA 90295 or noexit@mindspring.com.

ALSO:

Rent or own: Where can you afford to live?

Leased solar panels can complicate -- or kill -- a home sale


Inland Empire: poised to be a ‘big dog’ in California economy?