California · Davis-Stirling Act · Chapter 10, Article 3

What the CC&Rs actually are, and who may go to court about them.

Four sections carry the whole enforcement side of the Act: what a recorded covenant is in law, who has standing to sue on it, how the association's own fault is accounted for, and the one kind of lawsuit the governing documents may not stand in front of.

A covenant is a servitude, unless it is unreasonable

§ 5975(a) is the sentence everything else rests on. The covenants and restrictions in the declaration shall be enforceable equitable servitudes, unless unreasonable, and they inure to the benefit of and bind all owners of separate interests. Unless the declaration says otherwise, they may be enforced by any owner, or by the association, or by both.

Three things follow that are easy to miss. A recorded covenant runs with the land rather than binding by contract, so an owner who never signed anything is bound. Unless unreasonable is a standing qualification, not a drafting flourish — it is the hook on which an unenforceable covenant is challenged. And enforcement is not the association's monopoly: a neighbour may sue a neighbour directly on the declaration.

§ 5975(b) treats the other documents differently. A governing document that is not the declaration — the bylaws, the operating rules — may be enforced by the association against an owner, or by an owner against the association. Not, on the face of it, by one owner against another. The declaration binds everyone to everyone; the rest runs between the member and the association.

The association sues in its own name

§ 5980 gives the association standing to institute, defend, settle or intervene in litigation, arbitration, mediation or administrative proceedings in its own name as the real party in interest, without joining the members. That is what makes a construction-defect or common-area case practical at all; the alternative would be every owner as a named plaintiff.

The standing is not general. It reaches four subjects and stops:

1. (a)Enforcement of the governing documents.
2. (b)Damage to the common area.
3. (c)Damage to a separate interest that the association is obligated to maintain or repair.
4. (d)Damage to a separate interest that arises out of, or is integrally related to, damage to the common area or to a separate interest the association must maintain or repair.

Paragraphs (c) and (d) turn on the maintenance allocation, which means the answer to "may the association sue about this?" is often found on who repairs what rather than here.

The association's own share of the blame

§ 5985(a): where the association sues under § 5980(b), (c) or (d), its recovery is reduced in direct proportion to the fault of the association or its managing agents, on comparative fault principles. But the manner matters. That fault may be raised by way of defence and shall not be the basis for a cross-action or separate action against the association or its managing agents for contribution or implied indemnity, where the only damage was sustained by the association or its members. The subdivision then says so a second time, as express legislative intent: plead it as an affirmative defence, not as a separate cause of action.

§ 5985(b) goes further. A defendant or cross-defendant may allege and prove the association's comparative fault as a setoff even if the association is not a party — or is no longer one, whether by settlement, dismissal or otherwise. Settling out does not take the association's conduct off the table.

§ 5985(c) limits both to actions commenced on or after 1 January 1993, and (d) preserves liability under Civil Code § 1431 and the association's or its agent's own liability for an act or omission that damages someone else.

Suing the developer: the preconditions that are void

§ 5986 was added by SB 326 in 2019, and of everything on this page it is the section most likely to contradict an association's own documents.

Subject to compliance with § 6150 — which makes the board give members notice of a meeting to discuss, among other things, problems that may lead to a civil action being filed — and notwithstanding any provision to the contrary in the governing documents, the board has authority to commence and pursue a claim, civil action, arbitration, prelitigation process under § 6000 or the Right to Repair Act, or other proceeding against a declarant, developer or builder. Where the board still includes members appointed by or affiliated with that declarant, developer or builder, the decision is vested solely in the non-affiliated directors.

§ 5986(c) leaves one road open. Such a limitation is valid if it was adopted solely by the non-declarant-affiliated members and adopted by whatever procedure amending the governing documents requires. The objection is not to the restriction; it is to the developer having written it into the documents it drafted.

§ 5986(d) applies the section to all governing documents whether recorded before or after it took effect, and retroactively to claims initiated before it — except where those claims were already resolved by an executed settlement, a final arbitration decision, or a final judicial decision on the merits. § 5986(e) closes off the obvious over-reading: nothing here extends any statute of limitation or repose.