Colyear v. Rolling Hills Community Assn. of Rancho Palos Verdes (2024) 100 Cal.App.5th 110
In Colyear v. Rolling Hills Community Assn. of Rancho Palos Verdes (2024) 100 Cal.App.5th 110, the Court of Appeal for the Second District held that the Rolling Hills Community Association of Rancho Palos Verdes (“Association”) could not enforce a covenant that allowed the Association to trim property owners’ trees against an owner whose deed did not contain the covenant and whose property was not described in any instrument containing the covenant.
In the 1930’s the Palos Verdes Corporation began subdividing the planned community of Rolling Hills. The first phase of the development was initiated with the recordation of Declaration 150, which covered only a certain portion of Rolling Hills and established that additional tracts may be added via subsequent declarations. Declaration 150 contains a tree cutting covenant (“TCC”) that allows the Association to enter properties and trim trees in order to preserve the views of the community. Additional tracts were added to Rolling Hills over the years governed by additional declarations, not all of which included the TCC. In 1967 and 1970 Richard C. Colyear purchased two parcels governed by Declaration 150-M, which does not contain the TCC.
In 2015 Colyear’s neighbor filed an application with the Association requesting the Association trim another neighbor’s trees. The application contained a photograph in which two of Colyear’s trees were visible. Colyear preemptively sued the Association seeking declaratory relief stating the TCC was not enforceable against his property.
The trial court ruled in favor of Colyear, and the Association appealed. On appeal the Association argued that: (1) Declaration 150-M’s references to Declaration 150 incorporate the restrictions of Declaration 150, or, alternatively, put Colyear on notice that the TCC applies to his property; and (2) because Colyear benefits from the use of the Association’s common areas the TCC applies to his property.
Under Citizens for Covenant Compliance v. Anderson (1995) 12 Cal.4th 345, Declaration 150 Does Not Apply to Colyear’s Property
The Court of Appeal first explained why Declaration 150 does not directly apply to Colyear’s property, independent of the Association’s allegations that it was incorporated by reference into Declaration 150-M. In Citizens,the California Supreme Court established that where a common plan for a subdivision is recorded before the properties are sold, all properties in the subdivision are bound by the restrictions therein, regardless of whether the deed for a given property mentions the restrictions. The Citizens court explained that this rule is “consistent with the rationale that a covenant requires an agreement between buyer and seller.” If a recorded plan establishes that it applies to a given property, the implied intent of the purchaser to be bound by its restrictions may be inferred. However, here Declaration 150 does not describe Colyear’s property and does not indicate that it applies to all properties in Rolling Hills. Rather Declaration 150 covers a narrow strip down the middle of Rolling Hills. The Court of Appeal therefore explained that under Citizens, Declaration 150 does not apply to Colyear’s property.
Declaration 150-M Does Not Incorporate the Restrictions in Declaration 150 by Reference
Though a contract may incorporate the terms of another contract by reference, “the reference…must be clear and unequivocal.” Unlike some declarations governing tracts in Rolling Hills, Declaration 150-M does not expressly incorporate the restrictions in Declaration 150. Rather Declaration 150-M duplicates some of Declaration 150’s restrictions while omitting others. Though Declaration 150-M acknowledges that Declaration 150 exists, it does not state that Declaration 150’s covenants apply to tracts covered by Declaration 150-M. Because the references to Declaration 150 in Declaration 150-M do not sufficiently provide a clear, unequivocal, or certain incorporation of Declaration 150’s terms, the references that do exist in Declaration 150-M do not subject Colyear’s property to Declaration 150’s TCC.
References to Declaration 150 Did Not Put Colyear on Notice
Alternatively, the Association asserted the references to Declaration 150 in Declaration 150-M are sufficient to have put Colyear on notice at the time he purchased his property that the TCC applied to the property. According to the Association, Colyear should have seen the references, analyzed the competing declarations, and concluded the TCC applied to the property, and, under Citizens, this is sufficient to enforce the TCC. The court disagreed, explaining that in reviewing Declaration 150 Colyear could have reasonably concluded it only applied to the section of Rolling Hills described, which does not include his property. Accordingly, the court held the references to Declaration 150 in Declaration 150-M did not put Colyear on notice that the TCC applied to his property.
Colyear’s Use of Common Areas Does Not Subject His Property to the TCC
As a final argument, the Association asserted it would be unfair to allow Colyear to enjoy the benefits of Rolling Hills’ roads, gates, and other common areas without subjecting him to the burden of the TCC. The court disagreed, explaining that the Association’s articles of incorporation “establish that the common areas are governed by the Association ‘for the benefit of residents of any tract’ and as may be set forth in any subsequent declaration for such tract.” This means the use of the common areas is not restricted to properties subject to Declaration 150, and, as no declaration applicable to Colyear’s property includes the TCC, his use of the common areas could not be grounds for enforcing the TCC.
Conclusion
Though Citizens established that under certain circumstances covenants which are not recorded in a property’s deed can still be enforced against a property, it “does not stand for the proposition that a purported covenant outside the chain of title can be enforced whenever there is a development with a common grantor.” Though all the parcels in Rolling Hills share a common grantor, the parcels were conveyed under different declarations. For a covenant to apply to a property when it is not in the deed the restriction must be recorded in such a way that it would indicate to the purchaser at the time of purchase that the property is encumbered. As no recorded instrument indicated Colyear’s property was subject to the TCC, the court upheld the trial court’s determination.
Jack Sandage is a Law Clerk and J. Gage Marchini is a Senior Associate Attorney at Abbott & Kindermann, Inc. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.