Case No 07F-H067010-BFS & 07F-H067011-BFS

Complaint:
violations of CC&Rs and ACC; failure of HOA to respond within in specified time.

Source of Law:
Declarations.

Discussion:

Holding:

Additional Remarks:
This is a consolidated case, which generally occurs when more than one complaint deals with the same legal issues. More than one homeowner is involved -- one for each case.

Took HOA 72-days to respond to ACC request; CC&Rs specified a 45 day response time. Failure to respond constituted an automatic approval. (This was a 4-hour plus hearing!) Petitioner’s wanted to install a private gate on for their custom homes with 300-foot driveways. Homeowners were not allowed to remain in ACC committee during its supposed approval.

HOA claimed an incomplete submission was made -- needed a waiver from neighbors. Yet, there is no waiver requirement by neighbors in the CC&Rs or rules and regulations.

Second issue raised by Mulcahy, again not reason for the denial, gates were not aesthetically appropriate – denial was required within 45 days as per the written contract, “black-letter law”. It was the custom of ACC to get waivers, although not in the governing documents.

A decision against homeowners would, once again, demonstrate that when it comes to protecting homeowners, the CC&Rs are not worth the paper it’s written on. We are well aware of court opinions referring to the written contract and the meaning of the provisions as stated, unless ambiguous. (No case history was mentioned in the opening arguments by either lawyer).

ALJ said, “I always forget what CC&Rs stand for.” And to Ms. Mulcahy, “I saw your firm and recognized it.”

Beth Mulcahy for the HOA. Mr. Lynch for homeowners. Also asked for attorney fees.