Music to Accompany Hidden Harbour II: Stevie Nix, Belladonna (1981)

1. Property II: Class #9Wednesday 9/12/18Power Point PresentationNational Video Games Day &National Chocolate Milkshake Day

2. Music to Accompany Hidden Harbour II: Stevie Nix, Belladonna (1981) • Friday: Make-Up Class Here Early (8:30-9:50) • General Status Update • Materials for Friday & Most of Monday on Course Page • Updated Syllabus After Class w Today’s Slides • I’ll Give You 2d Written Assignment Monday • Feedback on 1st Submission No Later than Monday after Class

3. Chapter 2: Actual and Desirable Limits on Homeowners’ Association RegulationsSubstantive Limits: The California Standards (Nahrstedt cont’d)

4. Nahrstedt Dissent Test & DQ2.05 Justice Arabian suggests that associations should not be able to regulate activities that are “strictly confined to the owner’s interior space” if they do “not in any manner invade other units or the common areas.” Language Ambiguities from Last week • strictly confined • in any manner invade Other strengths and weakness of this test? Do you agree that his test is violated by the pet restriction?

5. Nahrstedt Upshot: Reigning Cats & Dogs If you agree with Justice Arabian about the importance of cats (I don’t; ther Egyptians also had gods in the forms of crocodiles, hippos, and jackals), what could you do once the court issues its decision? Always can ask legislature to rectify non-Constitutional decision. As noted last time, California passed statute (see Handout). Going forward, want to think about this chapter both as litigator and legislator.

6. DQ2.06 Nahrstedt 3-Prong Test Applied Presumption of Reasonableness Overcome if Challenged CC&R… • Violates public policy; • Is arbitrary = no rational relationship to protection, operation or purpose of affected land; OR iii) Burden on affected land far outweighs any benefit.

7. The Rhythm of the First Year • Same at All 4 Schools Where I’ve Taught • Same Every Year (even hurricane years 1992, 2005, 2017) But One

8. FALL 2001

9. The Rhythm of the First Year & Elements Analogy to Calisthenics

10. The Rhythm of the First Year & Elements Analogy to Calisthenics • Apply Language of Case to New Facts • Compare Facts of Case to New Facts • Apply Policy Concerns to New Facts • Identify Key Similarities & Differences

11. Back to Work!!

12. DQ2.06 Nahrstedt 3-Prong Test Applied Presumption of Reasonableness Overcome if Challenged CC&R… • Violates public policy; • Is arbitrary = no rational relationship to protection, operation or purpose of affected land; OR iii) Burden on affected land far outweighs any benefit. (b) No Satellite Dishes (Friedhoff & Ramos)

13. DQ2.06 Nahrstedt 3-Prong Test Applied (d) Retrieving Trash Containers (Fleming & Mandel) • In a community with stand alone units, residents must keep trash and recycling bins hidden from the street (e.g., in garages or in fenced-in areas). • For scheduled trash collection days, • residents my place bins at the curb no earlier than 9:00 p.m. the night before; and • must take them back to their usual storage area no later than 5:00 p.m. on collection day.

14. DQ2.06 Nahrstedt 3-Prong Test Applied Presumption of Reasonableness Overcome if Challenged CC&R… • Violates public policy; • Is arbitrary = no rational relationship to protection, operation or purpose of affected land; OR iii) Burden on affected land far outweighs any benefit. (d) Retrieving Trash Containers (Fleming & Mandel) Qs on Nahrstedt test?

15. Chapter 2: Actual and Desirable Limits on Homeowners’ Association RegulationsSubstantive Limits: The Florida StandardsThe Hidden Harbour CasesSubstantive StatutesKies (Friday)

16. Hidden Harbour Cases & Some Sociology Hidden Harbour Estates v. Norman [HHI] (4thDCA 1975) • HOA bans use of alcoholic beverages in common areas, • Rule adopted after declaration by proper procedures • 4th DCA upholds Rule Hidden Harbour Estates v. Basso [HHII] (4th DCA 1981) • HOA Declaration forbids exterior improvements/alterations w/o Board approval • Ds apply for approval toidig/use shallow well • Bd rejects in context of concern re salinization of HOA water supply. • 4th DCA denies Bd an injunction b/c lack of evidence of harm supporting denial

17. Hidden Harbour Cases & Some Sociology DQ2.07 • Why might the developers have chosen to use the English spelling of ‘Harbour” in the name of the complex? • Why did the 4th DCA tell us in HHIIthat the complex consisted of mobile homes but did not mention that fact in HHI?

18. Hidden Harbour Cases & Some Sociology DQ2.07 • Why might the developers have chosen to use the English spelling of ‘Harbour” in the name of the complex? • Canadian Developer (Some in Broward/Palm Beach)? • General Snob Appeal (Like House Models & Infomercials)? • Why did the 4th DCA tell us that the complex consisted of mobile homes in HHII but not in HHI? • Avoiding stereotypes about alcohol use & “trailer trash”? • Nice McLaughlin point re making clear how well fit

19. DQ2.08-2.09: Rules from Hidden Harbour Cases Category 1: Rules in Declaration • Strong presumption of validity from notice & reliance • Will not be invalidated absent a showing that they are • wholly arbitrary in their application, • in violation of public policy, OR • that they abrogate some fundamental constitutional right. • Not really a reasonableness test; can have “a certain degree of unreasonableness.”

20. DQ2.08-2.09: Rules from Hidden Harbour Cases Category 1: Rules in Declaration • Strong presumption of validity from notice & reliance. Not really a reasonableness test; can have “a certain degree of unreasonableness.” • E.g., Breitenbach (cited in HHII): • Declaration prohibited "material alterations" to the common elements of the condominium, which included screened enclosures that owners wanted to replace with jalousie windows • Court upheld HOA refusal even though proposed replacement “was certainly a reasonable one and would have doubtlessly improved their unit.” • QUESTIONS ON CATEGORY 1?

21. Compare Standards for Rules in Declaration CALIFORNIA FLORIDA Will not be invalidated absent a showing that they are wholly arbitrary in their application, in violation of public policy, OR that they abrogate some fundamental constitutional right. Presumption of Reasonableness Overcome if Challenged CC&R… • Violates public policy; • Is arbitrary = no rational relationship to protection, operation or purpose of affected land; OR • Burden on affected land far outweighs any benefit.

22. DQ2.08-2.09: Rules from Hidden Harbour Cases Category 2: Post-Declaration Decisions • Rules promulgated by Board following proper procedures • “[T]he refusal of the board of directors to allow a particular use when the board is invested with the power to grant or deny a particular use.” • Note this is why court in HHII is looking at reasonableness of individual decision. Board was exercising discretionary power, not simply applying a community-wide rule

23. DQ2.08-2.09: Rules from Hidden Harbour Cases Category 2: Post-Declaration Decisions • “[T]he board is required to enact rules and make decisions that are reasonably related to the promotion of the health, happiness and peace of mind of the unit owners.” • “[W]here the decision to allow a particular use is within the discretion of the board, the board must allow the use unless the use is demonstrably antagonistic to the legitimate objectives of the condominium association, i.e., the health, happiness and peace of mind of the individual unit owners.” (i.e., burden on Board to defend discretionary decisions).

24. DQ2.08-2.09: Rules from Hidden Harbour Cases “[T]he board is required to enact rules and make decisions that are reasonably related to the promotion of the health, happiness and peace of mind of the unit owners.” Example: HHI upholds ban on alcohol in common areas • Even though “there had been no untoward incidents occurring in the club house during social events when alcoholic beverages were consumed.” • Court noted that “restrictions on the use of alcoholic beverages are widespread throughout both governmental and private sectors; there is nothing unreasonable or unusual about a group of people electing to prohibit their use in commonly owned areas.” (Interesting fact to try to parallel or distinguish in other cases)

25. DQ2.08-2.09: Rules from Hidden Harbour Cases “[W]here the decision to allow a particular use is within the discretion of the board, the board must allow the use unless the use is demonstrably antagonistic to the legitimate objectives of the” HOA Example: HHII overturns denial of approval to dig/have well • Court says stated HOA’s reasonsfor denial were in the best interest of all of the owners, since they were legitimate objectives which would have promoted the aesthetic appeal [and the water quality] of the condominium development. • BUT no evidence that well in Q would cause problems connected to stated reasons. • ALSO: Board didn’t articulate reasons until trial (bad litigation posture). • Qs on Florida Category 2 Rules?

26. Compare Rational Relationship Tests CALIFORNIA FLORIDA Must be reasonably related to the promotion of the health, happiness and peace of mind of the unit owners. Focus on owners Health, Happiness and Peace of Mind • Must have rational relationship to protection, operation or purpose of affected land. • Focus on land • Protection, Operation or Purpose

27. DQ2.10-2.11 Additional Alcohol HyposBAN ALCOHOL THROUGHOUT COMPLEX Are there concerns that residents might raise in contesting a total alcohol ban that would not have been relevant in HHI?

28. DQ2.10-2.11 Additional Alcohol HyposBAN ALCOHOL THROUGHOUT COMPLEX If in Delaration? • Will not be invalidated absent a showing that they are • wholly arbitrary in their application, • in violation of public policy, OR • that they abrogate some fundamental constitutional right.

29. DQ2.10-2.11 Additional Alcohol HyposBAN ALCOHOL THROUGHOUT COMPLEX If in Subsequent Rule? Must be “reasonably related to the promotion of the health, happiness and peace of mind of the unit owners.”

30. DQ2.10-2.11 Additional Alcohol HyposBAN ALCOHOL THROUGHOUT COMPLEX If Part of a Clear Ethical/Moral/Health Purpose Embedded in Declaration? (Tee-Totaler Townhouses) Help HOA Case in Florida? In California?