Topping Palm Trees in the Name of CC&R Enforcement : A Proposal to Temper CC&R Enforcement with Common Sense

This article will first discuss the structure of CICs in general, and then review various approaches that state courts have taken in reviewing decisions made by the board of directors of a homeowner association. This article will then discuss the implications of Ekstrom vs. Marquesa Homeowners Association, where the California Court of Appeals ordered the Marquesa Homeowner Association to strictly enforce a CC&R resulting in mature palm trees being removed if those palm trees exceeded the roofline of the home on the lot and obstructed another homeowner's ocean or golf course view. The result was a practical absurdity: hundreds of mature palm trees in a coastal community, previously approved by the Association and planted at great expense to the homeowners, being removed to enhance the ocean and golf course views of a handful of residents. The decision serves as precedent for future boards to enforce each section of the governing documents with exacting specificity, no matter the consequences, since no exception to enforcement will be permitted by a court. It further demonstrates the need for some flexibility devise that will allow a board of directors to not enforce an otherwise valid provision in a homeowner association's CC&Rs – short of an amendment to the CC&Rs - where enforcement would not be in the best interest of the community, and the spirit of the CC&Rs could be furthered with something short of exacting enforcement. In Marquesa's situation, the spirit of the CC&R in question could have been realized by requiring approved palm trees that had grown above the roofline and were in another homeowners' sightline of the ocean or golf course to be thinned, thus preserving the trees and enhancing the ocean and golf course view. This alternative to strict enforcement was proposed by the Association in a set of rules adopted by the board, but the court held that these rules violated the plain meaning of Section 7.18 of the CC&Rs, which required the trees to be trimmed to roof top level, and thus the rules were outside the authority of the board. The board had no authority to veer from enforcing the plain meaning of the CC&R