Park River Oak Estates Homeowner's Association

CC&Rs

ARTICLE XIV
Breach and Default

[14.1] Section 1. Remedy at Law Inadequate. Except for the nonpayment of any Assessment, it is hereby expressly declared and agreed that the remedy at law to recover damages for the breach, default or violation of any of the covenants, conditions, restrictions, limitations, reservations, grants of easements, rights, rights-of-way, liens, charges or equitable servitudes contained in this Declaration are inadequate and that the failure of any Owner, tenant, occupant or user of any Lot, or any portion of the Common Area or Common Facilities, to comply with any provision of the Governing Documents may be enjoined by appropriate legal proceedings instituted by any Owner, the Association, its officers or Board of Directors, or by their respective successors in interest.

[14.2] Section 2. Nuisance. Without limiting the generality of the foregoing section 1, the result of every act or omission whereby any covenant contained in this Declaration is violated in whole or in part is hereby declared to be a nuisance, and every remedy against nuisance, either public or private, shall be applicable against every such act or omission.

[14.3] Section 3. Costs and Attorneys’ Fees. In any action brought because of any alleged breach or default of any Owner or other party hereto under this Declaration, the court may award to any party in any such action such attorneys’ fees and other costs as the court deems just and reasonable.

[14.4] Section 4. Cumulative Remedies. The respective rights and remedies provided by this Declaration or by law shall be cumulative, and the exercise of any one or more of such rights or remedies shall not preclude or affect the exercise, at the same or at different times, of any other such rights or remedies for the same or any different default or breach or for the same or any different failure of any Owner or others to perform or observe any provision of this Declaration.

[14.5] Section 5. Failure Not a Waiver. The failure of any Owner, the Board of Directors, the Association or its officers or agents to enforce any of the covenants, conditions, restrictions, limitations, reservations, grants or easements, rights, rights-of-way, liens, charges or equitable servitudes contained in this Declaration shall not constitute a waiver of
the right to enforce the same thereafter, nor shall such failure result in or impose any liability upon the Association or the Board, or any of its officers or agents.

[14.6] Section 6. Rights and Remedies of the Association.

(a)             Rights Generally. In the event of a breach or violation of any Association Rule or of any of the restrictions contained in any Governing Document by an Owner, his or her family, or the Owner’s guests, employees, invitees, licensees, or tenants, the Board, for and on behalf of all other Owners, may enforce the obligations of each Owner to obey such Rules, covenants, or restrictions though the use of such remedies as are deemed appropriate by the Board and available in law or in equity, including but not limited to the hiring of legal counsel, the imposition of fines and monetary penalties, the pursuit of legal action, or the suspension of the Owner’s right to use recreational Common Facilities or suspension of the Owner’s voting rights as a Member of the Association; provided that the Association’s right to undertake disciplinary action against its Members shall be subject to the conditions set forth in this section 6.

The initiation of legal action shall be subject to section 8, below.

The decision of whether it is appropriate or necessary for the Association to initiate enforcement or disciplinary action in any particular instance shall be within the sole discretion of the Association’s Board or its duly authorized enforcement committee. If the Association declines to take action in any instance, any Owner shall have such rights of enforcement as may exist by virtue of the California Civil Code section 1354 or otherwise by law.

(b)             Schedule of Fines. The Board may implement a schedule of reasonable fines and penalties for particular offenses that are common or recurring; in nature and for which a uniform fine schedule is appropriate (such as fines for late payment of Assessments or illegally parked vehicles). Once imposed, a fine or penalty may be collected as a Special Individual Assessment.

(c)             Definition of “Violation.” A violation of the Governing Documents shall be defined as a single act or omission occurring on a single day. If the detrimental effect of a violation continues for additional days, discipline imposed by the Board may include one component for the violation and, according to the Board’s discretion, a per diem component for so long as the detrimental effect continues. Similar violations on different days shall justify cumulative imposition of disciplinary measures. The Association shall take reasonable and prompt action to repair or avoid the continuing damaging effects of a violation or nuisance occurring within the Common Area at the cost of the responsible Owner.

(d)             Limitations of Disciplinary Rights.

(i)                        Loss of Rights: Forfeitures. The Association shall have no power to cause a forfeiture or abridgment of an Owner’s right to the full use and enjoyment of his or her Lot
due to the failure by the Owner (or his or her family members, tenants, guests or invitees) to comply with any provision of the Governing Documents or of any duly enacted Association Rule except where the loss or forfeiture is the result of the judgment of a court of competent jurisdiction, a decision arising out of arbitration or a foreclosure or sale under a power of sale for failure of the Owner to pay Assessments levied by the Association, or where the loss or forfeiture is limited to a temporary suspension of an Owner’s rights as a Member of the Association or the imposition of monetary penalties for failure to pay Assessments or otherwise comply with any Governing Documents so long as the Association’s actions satisfy the due process requirements of subparagraph below.

(e)             Hearings. No penalty or temporary suspension of rights shall be imposed pursuant to this article unless the Owner alleged to be in violation is given at least 15 days prior notice of the proposed penalty or temporary suspension and is given an opportunity to be heard before the Board of Directors or appropriate committee established by the Board with respect to the alleged violation(s) at a hearing conducted at least 5 days before the effective date of the proposed disciplinary action.

Notwithstanding the foregoing, under circumstances involving conduct that constitutes (i) an immediate and unreasonable infringement of, or threat to, the safety or quiet enjoyment of neighboring Owners; (ii) a traffic or fire hazard; (iii) a threat of material damage to, or destruction of, the Common Area or Common Facilities; or (iv) a violation of the Governing Documents that is of such a nature that there is no material question regarding the identity of the violator or whether a violation has occurred (such as late payment of Assessments or parking violations), the Board of Directors or its duly authorized agents may undertake immediate corrective or disciplinary action and, upon request of the offending Owner (which request must be received by the Association, in writing, within five days following the Association’s disciplinary action), or on its own initiative, conduct a hearing as soon thereafter as reasonably possible.

If the Association acts on its own initiative to schedule a hearing, notice of the date, time and location of the hearing shall accompany the notice of disciplinary action. If the accused Owner desires a hearing, a written request therefore shall be delivered to the Association no later than five days following the date when the fine is levied. The hearing shall be held no more than 15 days following the date of the disciplinary action or 15 days following receipt of the accused Owner’s request for a hearing, whichever is later. Under such circumstances, any fine or other disciplinary action shall be held in abeyance and shall only become effective if affirmed at the hearing.

(f)             Notices. Any notice required by this article shall, at a minimum, set forth the date and time for the hearing, a brief description of the action or inaction constituting the alleged violation of the Governing Documents and a reference to the specific Governing Document provision alleged to have been violated. The notice shall be in writing and may be given by any method reasonably calculated to give actual notice, provided that if notice is given by mail it shall be sent by first-class or certified mail sent to the last address of the Member shown on the records of the Association.

 

 

(g)             Rules Regarding Disciplinary Proceedings. The Board, or a Covenants Committee appointed by the Board to conduct and administer disciplinary hearings and related proceedings pursuant to section 7, below, shall be entitled to adopt rules that further elaborate and refine the procedures for conducting disciplinary proceedings. Such rules, when approved and adopted by the Board, shall become a part of the Association Rules.

[14.7] Section 7. Covenants Committee

(a)             Appointment of Committee. Acting pursuant to article X, section 1 of the Bylaws, the Board of Directors may establish a Covenants Committee to hear and decide cases involving alleged violations of the Governing Documents. If no committee is established, the Board shall perform this function.

(b)             Jurisdiction and Hearing Procedures of the Committee. The Covenants Committee shall review written complaints from Lot Owners, the General Manager, or the Architectural Committee (for violations other than those relating to specific Improvement projects within the jurisdiction of the Architectural Committee) regarding alleged violations of the Governing Documents or Association Rules, and, when determined appropriate, conduct hearings and make findings regarding the alleged violation(s). The Covenants Committee may levy penalties and/or fines (pursuant to a Board-approved fine schedule) in the event the allegations regarding such violations are found to be true. To perform the foregoing, the Covenants Committee shall adopt rules of procedure for enforcement hearings and shall conduct its hearings in accordance with such rules after they have been approved by the Board. Notwithstanding the foregoing, enforcement of specific violations of architectural requirements relating to Improvement projects submitted to, and reviewed by, the Architectural Committee shall remain the jurisdiction of the Architectural Committee pursuant to article V.

(c)             Appeals. The decisions of the Covenants Committee, if established, shall be appealable to the Board of Directors within 9 calendar days following receipt of the committee’s decision. The Board shall have the discretion to hear any appealed matter or decline to take the appeal and thus affirm the decision of the Covenants Committee. Any decision to decline an appeal shall be based on a reasonable determination from the record that the appeal lacks merit. Decisions of the Board shall be final. Procedures for appeal and the hearing of appeals shall be set forth in the Association Rules.

[14.8] Section 8. Court Actions; Arbitration; Mediation.

(a)             Court actions to enforce the Governing Documents may only be initiated on behalf of the Association upon approval of the Board and shall comply with California Civil Code
§1354.

(b)             Before instituting any judicial action, arbitration, or other proceeding arising out of any Owner’s or resident’s failure or alleged failure to comply with any provision of section 2.4 (Delegation of Use), Article V (Architectural Control), or Article VII (Use of

 

Properties and Restrictions), or for declaration, or injunctive relief to enforce the Governing Documents, the Association or Owner who desires to initiate such action (“Complaining Party”) must make a good faith attempt to mediate the dispute pursuant to this paragraph. The Complaining Party shall send the other party (the “Responding Party”) written notice of the nature of the dispute, the facts giving rise to its claim and its desire to mediate (the “Mediation Notice”). Should either party commence a judicial action, arbitration, or other proceeding without sending a Mediation Notice, the Responding Party shall be entitled to stay the action and request a Mediation Notice from the Complaining Party. The Mediation Notice shall name a mediator. Seller shall be obligated to pay any fee to initiate mediation, but the cost of mediation, including any attorneys’ fees, shall ultimately be borne as determined by the parties if the mediation results in a settlement of the dispute. If the Responding Party does not agree with the complaining Party’s choice of a mediator, the parties shall ask that the American Arbitration Association pick a mediator from its panel within ten (9) days from the Responding Party’s receipt of the Mediation Notice. Within thirty (30) days after the mediator is chosen, the parties shall schedule and attend a mediation and attempt in good faith to resolve their dispute. If the mediation does not resolve the dispute or if the Responding Party refuses to attend, the Complaining Party shall be free to commence litigation. The requirements of this paragraph shall not apply under circumstances where the Complaining Party is entitled to a temporary restraining order or preliminary injunction in order to avoid irreparable harm or injury.

(c) If the Association and an owner are unsuccessful at resolving any failure or alleged failure by the owner or by the owner’s tenant to comply with any provision of section 2.4 (“Delegation of Use”), Article V (“Architectural Control”), or Article VII (“Use of Properties and Restrictions”), the dispute shall be submitted to, and conclusively determined by, binding arbitration in accordance with this subparagraph (c), provided, however, that the provisions of this subparagraph shall not preclude any party from seeking injunctive or other provisional or equitable relief in order to preserve the status quo of the parties pending resolution of the dispute, and the filing of an action seeking injunctive or other provisional relief shall not be construed as a waiver of that party’s arbitration rights.

The arbitrators shall be selected and the arbitration conducted in accordance with the Commercial Arbitration rules of the American Arbitration Association

Except as provided above, the arbitration procedures set forth in the California arbitration act statutes (CCP §~1282-1294.2) shall apply to the arbitration.

The arbitration shall proceed with due dispatch and a decision shall be rendered within 60 days after appointment of the arbitrator(s). The arbitrator(s)’ decision shall be in writing and in a form sufficient for entry of a judgment in any court of competent jurisdiction and in a form sufficient for entry of a judgment in a court of competent jurisdiction in the state of California. Any decision of the arbitrator(s) shall be subject to the limitations set forth in the immediately succeeding paragraph.

The arbitrator(s)’ decision shall pertain, and shall be limited to, the granting of damages

not to exceed any party’s actual out-of-pocket expenses and the costs of undertaking any repairs, maintenance or reconstruction relating to the dispute and the award of any injunction or other equitable relief. In no event shall the arbitrator(s)’ award include any component for punitive or exemplary damages. Costs of the arbitration proceeding shall be borne as determined by the arbitrator(s).

[14.8] (d)(i) Association as party to disputes: The Association, subject to the provisions of Civil Code § 1354, shall have the right to institute, defend, settle actions in law or equity or intervene as a party, in any dispute regarding (a) enforcement of these Covenants, Conditions and Restrictions, Bylaws of the Association, or Articles of Incorporation of the Association, (b) damage to the Common Areas, (c) damage to the separate interests of members which the Association is obligated to maintain or repair, or (d) damage to the separate interests of members due to damage to the common areas or separate interests that the Association is obligated to maintain or repair.

[14.8] (d)(ii) Prior to initiating any action to enforce the Governing Documents, the Board may provide one hundred twenty (120) days advance notice of the Board’s interest to initiate civil action to every member of the Association and to all prospective parties to the action provided that such notice does not allow any pertinent statute of limitations to expire, does not prejudice the Association’s right to enforce the Governing Documents, such notice is not necessary to actions brought in small claims court or to solely enforce assessment obligations.

[14.8] (e) The Association, except to comply with California Civil Code §1354(b), shall not be required to submit civil claims to binding or non-binding mediation or arbitration.

[14.8] (f) The Association shall not be required to, as a prerequisite to initiating any civil action, conduct inspections, inspect records, exhaust applicable casualty insurance coverage, provide opportunities to cure, meet with members, or obtain the consent of members.

[14.9] Section 14. Late Charges. Late charges may be levied by the Association against it and Owner for the delinquent payment of regular or special assessments. An assessment is delinquent 15 days after its due date. If an assessment is delinquent the Association may recover all of the following from the Owner:

(a)             Reasonable costs incurred in collecting the delinquent assessment including reasonable attorney’s fees.
(b)  A late charge not exceeding 10% of a delinquent assessment or $10.00, which ever is lower.
(c)             Interest on the foregoing sum at an annual percentage rate of 12%, commencing 30 days after the assessment becomes due.
(d)  No late charge may be imposed more than once for the delinquency of the same payment. However, the imposition of late charge on any delinquent payment shall not eliminate or supersede charges on prior delinquent payments.