RISMEDIA, February 9, 2009-(MCT)-Q. My wife and I helped our daughter, financially, with the purchase of a condominium in October. We were given the Codes, Covenants and Restrictions for the homeowner’s association prior to the close of escrow, and it indicated that the complex had 12 guest parking spaces. The condo complex is four-story structure with two-level subterranean parking for the 47 units.
The guest parking was important in the purchase due to several other apartment and/or condo structures nearby, making parking on the adjacent streets very difficult. After closing escrow, we were told by the selling agents for the developer that there were no guest parking spaces available. The agents referred us to the property management company.
The property management company was surprised that the CC&Rs indicated guest parking spaces and advised that the plot plan approved by the city indicated none. It appears to everyone that the CC&Rs are not as important as I think they are.
It appears that the developer would like to change the CC&Rs to indicate no guest parking spaces. Of the 47 units, only half have been sold; therefore, the developer has voting rights for the units not sold. Can they make this change in the CC&Rs as they would like? Also, do the people who purchased units so far have any recourse since what was stated in the CC&Rs was not true?
A. When a development is first proposed, the developer prepares a declaration that provides structure to the operation of the homeowner’s association, or HOA. This includes the CC&Rs and bylaws regarding the operation of the HOA. For the startup period, the developer will control voting rights for the unsold units.
Your letter does not make clear how many votes or what percentage of votes are needed to change the CC&Rs. More importantly, the representation was made that 12 guest parking spaces were available. It appears that the 12 spaces were never available.
You should obtain copies of all sales brochures and promotional materials that falsely represented the guest parking. The developer and his or her agents have a responsibility to accurately represent the property to prospective buyers. The unit owners have a right to expect that the guest parking that was represented is available and buyers relied on the representations made by the developer and the listing agent.
You should contact a state authority-in your case, the California Department of Real Estate-and an attorney.
Dr. Thomas Musil is the director of the Shenehon Center for Real Estate in the Opus College of Business at the University of St. Thomas in Minneapolis. He has more than 25 years of experience in real estate as a broker, analyst, consultant and expert witness in real estate litigation and arbitration disputes.
© 2009, McClatchy-Tribune Information Services.