Plaintiffs objected to the installation of the nonconforming fence because they believed that it would materially obstruct their view. The Ehles’ is the type of fence designated in the Declaration for a side yard without a view. Shortly thereafter, plaintiffs’ neighbors, the Ehles, received approval from the Committee to construct a solid slump stone fence immediately adjacent to the Cohens’ slump stone and wrought iron fence. This is the type of fence designated by the Declaration for use in a lot such as the Cohens’ i.e., a side yard with a view.
One part of the plan approved by the Committee was a slump stone and wrought iron fence (a two-foot slump stone base topped by a three-foot iron fence). The Declaration requires that such plans be submitted to the Committee in writing and be approved before any construction can begin. Shortly after the Cohens purchased their home, they submitted to the Association’s architectural committee (the Committee) plans for certain improvements and landscaping in their front and rear yards. The Declaration was also attached as an exhibit to the complaint.Įvery owner of a lot in Kite Hill is automatically a member of the Association and subject to payment of regular and special assessments to the Association for the purpose of carrying out its community functions. It was organized by the developer, S & S Construction Company, for the purpose of administering and enforcing the declaration of covenants, conditions and restrictions (the Declaration) which was recorded as to the entire tract and incorporated by reference into the respective deeds by which all Kite Hill residents acquired their homes in this tract. The Association, a nonprofit corporation duly organized and existing under the laws of California, is composed of all of the homeowners in Kite Hill. Cohen, purchased a lot in Kite Hill which afforded a panoramic view of the surrounding countryside. Because we conclude that the plaintiffs finally succeeded in pleading a cause of action, we shall reverse the judgment.Īs reflected by the allegations of plaintiffs’ complaint, Kite Hill is a residential community located in the rolling hills of southern Orange County. This is an appeal from a judgment of dismissal entered after an order sustaining the demurrer of defendant, Kite Hill Community Association (the Association), to the plaintiffs’ fourth amended complaint. Neuland for Plaintiffs and Appellants. Feldsott, Lee & Van Gemert and Martin L.
Hickey, Neuland, Pardes & Colletta and Richard P. When exercising its architectural control authority, an association owes a fiduciary duty to its members to act in good faith, and to not make decisions that are arbitrary or capricious.
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