Tract 19051 HOA v. Kemp
A homeowners association and numerous homeowners (plaintiffs) sued to halt defendant homeowners’ remodeling construction for alleged violations of the subdivision’s declaration of restrictions (declaration or DOR’s). During a court trial, the main issue was whether the declaration, which had a January 1, 2000 expiration date, was properly renewed by a majority of homeowners in 1999. The answer turned on whether the subdivision is a “common interest development†under the Davis-Stirling Common Interest Development Act (Civ. Code, § 1350 et seq.) (Act), such that the majority’s renewal of the declaration was permitted by Civil Code section 1357.[1] The trial court found that because the subdivision is not a common interest development, section 1357 did not apply and the majority’s renewal of the declaration was ineffectual. Because the declaration had expired, the court entered judgment for defendant homeowners, who recovered costs and attorney fees under section 1354.
In this appeal by plaintiffs,[2] we affirm the judgment for defendants, but reverse the award of attorney fees under section 1354. (Mount Olympus Property Owners Assn. v. Shpirt (1997) 59 Cal.App.4th 885, 895-896 (Mount Olympus) [because the Act did not apply, the trial court erred in awarding attorney fees under § 1354].)
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