California Appellate Court finds CC&R provision unconscionable
CAI stalwart Jon Epsten wins on appeal by arguing on behalf of an HOA that the waiver of jury trial against the developer contained in the CC&Rs was unconscionable.
Does that mean owners will win using the same arguments of unconscionability when the CC&Rs take away their rights? Don't count on it. There is so much judicial protection of associations going on now that it is like watching the Chicago Tribune cover for Barack Obama.
Thanks to Fred Pilot for this alert.
1 comment:
It should be noted that this case, Villa Milano and the other authorities cited by the Court of Appeal that support the theory that CC&Rs can be construed as contracts all involve condominium projects. I don't think that's a coincidence because condos are more akin to publicly traded nonprofit real estate holding corporations and lend themselves to contract law far better than detached unit commmon interest developments. The latter resemble towns and municipalities replete with many housing units (usually far more than most condos), extensive infrastructure such as roads and recreational amenities and often commercial establishments.
These planned unit developments (PUDs) truly represent the privatization of local government discussed in your 1994 book "Privatopia."
It's time to stop lumping condos and PUDs together under the rubric of privatized local government when only the latter is deserving of the label.
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