Stanford Law School - Robert Crown Law Library

Filed 6/14/04

IN THE SUPREME COURT OF CALIFORNIA

VILLA DE LAS PALMAS
HOMEOWNERS ASSOCIATION,
Plaintiff and Respondent,
S109123
v.
Ct.App. 4/2 E029449
PAULA TERIFAJ, as Trustee, etc.,
Riverside
County
Defendant and Appellant.
Super.Ct. No. INC 013318

Civil Code section 1354, subdivision (a),1 provides that covenants and
restrictions in the declaration of a common interest development “shall be
enforceable equitable servitudes, unless unreasonable.” Section 1355, subdivision
(b), in turn, provides that the declaration may be amended if certain procedures are
followed. In Nahrstedt v. Lakeside Village Condominium Association (1994) 8
Cal.4th 361 (Nahrstedt), we construed subdivision (a) of section 1354 and held
that covenants and restrictions in the declaration are enforceable “unless they are
wholly arbitrary, violate a fundamental public policy, or impose a burden on the
use of affected land that far outweighs any benefit.” (Nahrstedt, supra, at p. 382.)
The use restriction in that case, a no-pet restriction, was included in a

1
All further statutory references are to the Civil Code.

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condominium development’s originating declaration and recorded prior to the
conveyance of any of the units.
The questions we confront in this case are whether use restrictions added to
a declaration through an amendment and recorded after a homeowner has
purchased an individual unit bind such an owner, and whether the rule of
Nahrstedt — that restrictions in a development’s declaration are presumed to be
reasonable and are enforceable unless they are arbitrary, impose an undue burden
on the property or violate fundamental public policy (Nahrstedt, supra, 8 Cal.4th
361, 386) — applies to subsequently enacted restrictions. We are also called upon
to decide whether the trial court abused its discretion in awarding attorney fees to
the homeowners association.
We conclude that under the plain and unambiguous language of sections
1354, subdivision (a), and 1355, subdivision (b), use restrictions in amended
declarations recorded subsequent to a challenging homeowner’s purchase of a
condominium unit are binding on that homeowner, are enforceable via injunctive
relief under section 1354, subdivision (a), and are entitled to the same judicial
deference given use restrictions recorded prior to the homeowner’s purchase. We
also conclude the trial court did not abuse its discretion in awarding attorney fees
to the homeowners association as the prevailing party.
I. FACTS AND PROCEDURAL HISTORY
Villa De Las Palmas is a relatively small condominium development
consisting of 24 units located in a single L-shaped building. There are 12 units
each on the top and bottom levels, and all units have either a small patio or a deck,
with common walls separating them. The walls, described as “pony walls,”
initially extend from the unit at full height, and then slope down. Many owners,
including defendant Paula Terifaj, do not make Villa De Las Palmas, which is
2

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located in Palm Springs, their primary residence, but visit only periodically or
seasonally.
The individual condominium units were conveyed to the original grantees
in 1962 by recorded grant deeds that contained the development’s covenants,
conditions, and restrictions, also commonly known as CC & R’s. Pursuant to the
1962 deed (Declaration), all grantees were required to execute a management
agreement and “covenant and agree to observe, perform and abide by any and all
lawful by-laws, rules, regulations and conditions with respect to the use and
occupancy of said premises which may from time to time be adopted or prescribed
by the Board of Governors constituted in said Management Agreement.” Failure
to abide by any covenant or restriction in the Declaration could result in forfeiture,
and “any owner or occupant of any apartment upon said premises may bring legal
action for injunction and/or damages against said defaulting owner . . . .” The
Declaration further provided that “[t]he benefits and obligations of this deed shall
inure to and be binding upon the heirs . . . and assigns of the respective parties
hereto.”
Pursuant to the authority granted in the Declaration, the Villa De Las
Palmas Homeowners Association (the Association) adopted a rule prohibiting
pets. The unrecorded rule provided: “Pets of any kind are forbidden to be kept in
the apartment building or on the grounds at any time.” While the exact date of the
adoption of the no-pet rule is unknown, it is undisputed that it was in existence
when Terifaj purchased her unit. Terifaj, a veterinarian who purchased her unit in
1995, did not receive a written copy of the rule prohibiting pets, but she admitted
at trial that she was aware of the no-pet rule when she purchased her unit.
Despite the prohibition on pets, from the time Terifaj purchased her unit
until 1998, she visited her unit with her dog Lucy. When Lucy died in 1998,
Terifaj acquired another dog, a female boxer, and brought her to the property.
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Terifaj attempted to have the Association amend the no-pet rule at the
Association’s 1996 and 2000 general meetings, but was unsuccessful.
The Association repeatedly warned Terifaj that she was violating the rule
prohibiting pets on the property and fined her accordingly. Terifaj, however, was
undeterred and continued to bring her dog to the development. In response, in
August 1999, the Association filed a complaint for injunctive and declaratory
relief and nuisance, along with a motion for preliminary injunction, to compel
Terifaj to abide by the no-pet rule. The trial court denied the motion for
preliminary injunction in October 1999, ruling that it was not convinced the
Association would prevail on the merits and that irreparable injury was not
evident. The court ordered the case to nonbinding arbitration with a March 8,
2000, completion date.
In the interim between the denial of the preliminary injunction and the
completion of arbitration, the members of the Association voted to amend the
Declaration. In January 2000, the Association adopted and recorded the Amended
and Restated Declaration of Covenants, Conditions and Restrictions (Amended
Declaration), which added a no-pet restriction, providing: “No pets or animals of
any kind, including without limitation, dogs, cats, birds, livestock, reptiles or
poultry, may be kept or permitted in any Apartment or anywhere on the Property.”
The Amended Declaration further provides that violations of the covenants and
restrictions contained in the Amended Declaration are nuisances, and that such
violations may be enjoined.
Based on the recorded Amended Declaration, the Association filed an
amended complaint alleging the same causes of action and seeking the same relief
as the original complaint. Following a bench trial, the trial court ruled in favor of
the Association on all causes of action. It found the covenants and restrictions in
the Amended Declaration to be enforceable equitable servitudes, granted a
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permanent injunction against any further violation of the no-pet restriction, and
found the violation to be a nuisance. The court awarded the Association $15,000
in attorney fees.
The Court of Appeal affirmed. It concluded that section 1354 “[o]n its face
. . . applies to any declaration, regardless of when it is adopted and recorded.”
Because the no-pet restriction was in the recorded Amended Declaration, it
therefore constituted an equitable servitude under section 1354, subdivision (a).
Relying on Nahrstedt, which the Court of Appeal found governed review of the
pet restriction, the court held the restriction was not unreasonable.
We granted Terifaj’s petition for review.
II. DISCUSSION
As a condominium project, Villa De Las Palmas is a common interest
development subject to the provisions of the Davis-Stirling Common Interest
Development Act (the Davis-Stirling Act or the Act). (§ 1350 et seq.) The Davis-
Stirling Act, enacted in 1985 (Stats. 1985, ch. 874, § 14, pp. 2774-2786),
consolidated the statutory law governing condominiums and other common
interest developments. Under the Act, a common interest development is created
“whenever a separate interest coupled with an interest in the common area or
membership in [an] association is, or has been, conveyed” and a declaration, a
condominium plan, if one exists, and a final or parcel map are recorded.2 (§
1352.) Common interest developments are required to be managed by a
homeowners association (§ 1363, subd. (a)), defined as “a nonprofit corporation or
unincorporated association created for the purpose of managing a common interest

2
Although Villa De Las Palmas was created prior to the enactment of the
Davis-Stirling Act, the Act applies to common interest developments in existence
prior to its enactment. (§ 1352; Nahrstedt, supra, 8 Cal.4th at p. 378, fn. 8.)
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development” (§ 1351, subd. (a)), which homeowners are generally mandated to
join (Nahrstedt, supra, 8 Cal.4th at p. 373).
The Act contains a fairly extensive definitions section, defining as relevant
here “governing documents” and “declaration.” The declaration is defined as “the
document, however denominated, which contains the information required by
section 1353.” (§ 1351, subd. (h).) Section 1353 requires that declarations
recorded on or after January 1, 1986, contain certain information, including the
development’s covenants and restrictions. The governing documents encompass a
broader category of documents, including “the declaration and any other
documents, such as bylaws, operating rules of the association, articles of
incorporation, or articles of association, which govern the operation of the
common interest development or association.” (§ 1351, subd. (j).)
The declaration is often referred to as the development’s constitution (see
Rest.3d Property, Servitudes, § 6.10, com. a, p. 196; 1 Hanna & Van Atta, Cal.
Common Interest Developments: Law and Practice (2003) § 22:2, p. 1325) and
“establish[es] a system of governance.” (Villa Milano Homeowners Association v.
Il Davorge (2000) 84 Cal.App.4th 819, 827.) Importantly, it contains the
development’s covenants and restrictions, which are “enforceable equitable
servitudes, unless unreasonable.” (§ 1354, subd. (a).) Several provisions of the
Act allow for the amendment of the declaration. Of particular relevance here is
section 1355, subdivision (b) (hereafter section 1355(b)), which provides in
relevant part: “Except to the extent that a declaration provides by its express terms
that it is not amendable, in whole or in part, a declaration which fails to include
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provisions permitting its amendment at all times during its existence may be
amended at any time.”3
Terifaj’s argument is somewhat ambiguous with respect to enforcement of
restrictions contained in amended declarations. She appears to argue that such
restrictions are entirely unenforceable in any manner, but also maintains that such
restrictions are not enforceable pursuant to section 1354, subdivision (a), because
they do not meet the requirements of equitable servitudes. Since her argument is
vague, we address both contentions.
Because we are construing provisions in the Davis-Stirling Act, we briefly
recite the rules of statutory construction that will guide our decision. Our primary
task in construing a statute is to ascertain the intent of the Legislature. (Peracchi
v. Superior Court (2003) 30 Cal.4th 1245, 1253.) We make this determination by
looking to the words used in the statute and giving them their plain meaning.
(Smith v. Rae-Venter Law Group (2002) 29 Cal.4th 345, 358.) “ ‘. . . “If there is
no ambiguity in the language of the statute, ‘then the Legislature in presumed to
have meant what it said.’ ” ’ ” (Ibid.)
A.
We must first decide whether a use restriction contained in an amended
declaration is enforceable against a homeowner who acquired his or her separate

3
In addition to section 1355(b), the Davis-Stirling Act provides several
methods for amending the declaration. Section 1355, subdivision (a), provides
that a declaration may be amended pursuant to its own amendment provisions or
pursuant to other provisions of the Act; section 1356 allows a homeowners
association to petition the court for approval of an amendment if the declaration
provides for a larger majority than the association is able to muster, provided at
least 50 percent of the owners vote in favor of the proposed amendment; section
1355.5 provides for the deletion of certain developer-oriented provisions; section
1357 provides for the extension of a termination date set forth in a declaration.
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interest before the challenged amendment was adopted and recorded. As noted
above, under the Davis-Stirling Act, a common interest development may amend
its declaration pursuant to the provisions of the declaration itself or under the
provisions of the Act. When a declaration is silent on whether it may be amended,
section 1355(b) provides that it may be amended at any time. For the following
reasons, we conclude that use restrictions added to a declaration by amendment
bind not only subsequent purchasers, but current homeowners as well.
This conclusion follows from the plain language of section 1355(b), which
provides in part: “For purposes of this subdivision, an amendment is only effective
after (1) the proposed amendment has been distributed to all of the owners of
separate interests in the common interest development by first-class mail postage
prepaid or personal delivery not less than 15 days and not more than 60 days prior
to any approval being solicited; (2) the approval of owners representing more than
50 percent . . . of the separate interests in the common interest development has
been given, and that fact has been certified in a writing, executed and
acknowledged by an officer of the association; and (3) the amendment has been
recorded in each county in which a portion of the common interest development is
located.” (Italics added.) Additionally, a copy of the recorded amendment must
immediately be mailed or delivered to all homeowners.4 In short, the statute

4 Section
1355(b)
provides in full: “Except to the extent that a declaration
provides by its express terms that it is not amendable, in whole or in part, a
declaration which fails to include provisions permitting its amendment at all times
during its existence may be amended at any time. For purposes of this
subdivision, an amendment is only effective after (1) the proposed amendment has
been distributed to all of the owners of separate interests in the common interest
development by first-class mail postage prepaid or personal delivery not less than
15 days and not more than 60 days prior to any approval being solicited; (2) the
approval of owners representing more than 50 percent, or any higher percentage
required by the declaration for the approval of an amendment to the declaration, of

(footnote continued on next page)
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provides that an amendment is effective after notice of the proposed amendment is
given to the homeowners, a majority of the homeowners approve the amendment,
and the amendment is recorded. (1 Hanna & Van Atta, Cal Common Interest
Developments: Law and Practice, supra, § 22:119, p. 1439; 9 Miller & Starr, Cal.
Real Estate (3d ed. 2001) § 25:133, pp. 302-303.)
Plainly read, any amendment duly adopted under this subdivision is
effective against all homeowners, irrespective of when the owner acquired title to
the separate interest or whether the homeowner voted for the amendment. (See,
e.g., 1 Hanna & Van Atta, Cal Common Interest Developments: Law and Practice,
supra, § 22:119, p. 1439; 9 Miller & Starr, Cal. Real Estate, supra, § 25:133,
p. 308.) Terifaj’s argument that subsequently enacted amendments are not binding
on current homeowners runs counter to section 1355(b)’s express language that an
amendment is effective upon the satisfaction of the requirements enumerated in
that provision. Neither section 1355(b) nor any other provision in the Davis-
Stirling Act exempts from compliance with amendments to the declaration
homeowners who purchased their individual units prior to the amendment.
That is not surprising. To allow a declaration to be amended but limit its
applicability to subsequent purchasers would make little sense. A requirement for
upholding covenants and restrictions in common interest developments is that they

(footnote continued from previous page)

the separate interests in the common interest development has been given, and that
fact has been certified in a writing, executed and acknowledged by an officer of
the association; and (3) the amendment has been recorded in each county in which
a portion of the common interest development is located. A copy of any
amendment adopted pursuant to this subdivision shall be distributed by first-class
mail postage prepaid or personal delivery to all of the owners of separate interest
immediately upon its recordation.”
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be uniformly applied and burden or benefit all interests evenly. (See, e.g.,
Nahrstedt, supra, 8 Cal.4th at p. 368 [restrictions must be “uniformly enforced”];
Rest.3d Property, Servitudes, § 6.10, com. f, p. 200.) This requirement would be
severely undermined if only one segment of the condominium development were
bound by the restriction. It would also, in effect, delay the benefit of the
restriction or the amelioration of the harm addressed by the restriction until every
current homeowner opposed to the restriction sold his or her interest. This would
undermine the stability of the community, rather than promote stability as
covenants and restrictions are intended to do.
Terifaj’s position would also, essentially, render meaningless the simple
majority vote required for amendments to take effect under section 1355(b).
Instead, unanimous consent would be needed, which would often be unattainable.
The language of section 1355(b), however, makes clear that a simple majority is
all that is required before an amendment becomes effective. One reason for this is
because amendment provisions are designed to “prevent[] a small number of
holdouts from blocking changes regarded by the majority to be necessary to adapt
to changing circumstances and thereby permit the community to retain its vitality
over time.” (Rest.3d Property, Servitudes, § 6.10, com. a, p. 196.)
Subjecting owners to use restrictions in amended declarations promotes
stability within common interest developments. As we observed in Nahrstedt,
“[u]se restrictions are an inherent part of any common interest development and
are crucial to the stable, planned environment of any shared ownership
arrangement.” (Nahrstedt, supra, 8 Cal.4th at p. 372.) Such restrictions may
“preclude alteration of building exteriors, limit the number of persons that can
occupy each unit, and place limitations on — or prohibit altogether — the keeping
of pets. [Citations.]” (Id. at p. 373.) We explained that a homeowners
association, “through an elected board of directors, is empowered . . . to enact new
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rules governing the use and occupancy of property within the [development].”
(Ibid.) We further observed that “anyone who buys a unit in a common interest
development with knowledge of its owners association’s discretionary power
accepts ‘the risk that the power may be used in a way that benefits the
commonality but harms the individual.’ ” (Id., at p. 374, quoting Natelson,
Consent, Coercion, and “Reasonableness” in Private Law: The Special Case of
the Property Owners Association (1990) 51 Ohio State L.J. 41, 67.) A prospective
homeowner who purchases property in a common interest development should be
aware that new rules and regulations may be adopted by the homeowners
association either through the board’s rulemaking power or through the
association’s amendment powers. (See, e.g., Randolph, Changing the Rules:
Should Courts Limit the Power of Common Interest Communities to Alter Unit
Owners’ Privileges in the Face of Vested Expectations? (1998) 38 Santa Clara
L.Rev. 1081, 1126 [“There is no basis to argue that purchasers of units within
common interest communities have an expectation that there will be no changes at
all.”].)
Finally, section 1355(b)’s legislative history supports the conclusion that all
homeowners are bound by amendments adopted and recorded subsequent to
purchase. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 736 [court
“may observe that available legislative history buttresses a plain language
construction”].) Subdivision (b) of section 1355 was not part of the bill enacting
the Davis-Stirling Act, but was added three years later in 1988. (Stats. 1988, ch.
1409, § 1, p. 4776 [Assem. Bill No. 4426].)5 An enrolled bill report from the

5 Section
1355(b)
initially
contained a sunset provision with a termination
date of January 1, 1990. In 1993, the Legislature amended the subdivision by
deleting the sunset provision. (§ 1355(b), as amended by Stats. 1993, ch. 21, § 1,

(footnote continued on next page)
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Department of Real Estate states that “[m]embers of a homeowners’ association
. . . should not forever be saddled with provisions they desire to change.” (Cal.
Dept. of Real Estate, Enrolled Bill Rep. on Assem. Bill No. 4426 (1987-1988 Reg.
Sess.) Aug. 29, 1988, p. 1.) Significantly, the report recommended approval of
Assembly Bill No. 4426, despite acknowledging that current homeowners may
have relied on the restrictions in place at the time they made their purchase,
stating: “The failure to include a provision for amendment may indicate an
intentional omission. Additionally, some changes may provide for inconsistent
uses which were not previously permissible. Many owners may have acquired
their interest in the subdivision because of such a restriction limiting use. To
permit an amendment would affect their reasonable expectations.” (Enrolled Bill
Rep. on Assem. Bill No. 4426, supra, p. 2.) The Legislature was thus aware that
amendments could affect settled or reasonable expectations of some homeowners,
but it did not limit the language of section 1355(b) to exempt those homeowners
from subdivision (b)’s operation. Tellingly, nothing in the text of section 1355(b)
indicates the Legislature intended only subsequent purchasers or homeowners who
voted for an amendment to be bound by a use restriction so enacted.
Section 1355(b)’s express language and the limited legislative history
compel the conclusion that all homeowners are bound by amendments made to a
declaration pursuant to that section. Accordingly, we conclude that all
homeowners are subject to use restrictions contained in amended declarations
irrespective of when the amendment was passed.

(footnote continued from previous page)

pp. 134-135.) Section 1355(b), therefore, was inoperative between January 1,
1990 and January 1, 1994.
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B.
To enforce the no-pet restriction in the Amended Declaration, the
Association sought injunctive relief under section 1354, subdivision (a) (hereafter
section 1354(a)), which provides in relevant part: “The covenants and restrictions
in the declaration shall be enforceable equitable servitudes, unless unreasonable.”6
Terifaj contends that even if subsequently enacted use restrictions promulgated
pursuant to section 1355(b) and recorded after a homeowner has purchased
property in the development are binding on those homeowners, equitable relief
under section 1354(a) is nonetheless unavailable to the homeowners association to
enforce such restrictions.
Equitable relief, maintains Terifaj, may not be granted under section
1354(a) in this case because that section requires that a use restriction constitute an
equitable servitude in order to be enforceable through injunctive relief.7 She cites
our decision in Citizens for Covenant Compliance v. Anderson (1995) 12 Cal.4th
345 for the applicable California law on equitable servitudes, which she contends
is incorporated in section 1354(a). She maintains the no-pet restriction in this case
did not meet the requirements of equitable servitudes, in part, because it was not
contained in a document recorded prior to her purchase of a unit in the
development, and she did not have notice of the restriction when she purchased the
property.

6
In full, section 1354(a), provides: “The covenants and restrictions in the
declaration shall be enforceable equitable servitudes, unless unreasonable, and
shall inure to the benefit of and bind all owners of separate interests in the
development. Unless the declaration states otherwise, these servitudes may be
enforced by any owner of a separate interest or by the association, or by both.”
7
Section 1354(a) is found in article 2 of the Davis-Stirling Act, which is
entitled “Enforcement.”
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The Association counters that section 1354(a) applies to all restrictions and
covenants in the development’s recorded declaration, original or amended, and
relies primarily on the Court of Appeal’s conclusion that section 1354(a) facially
applies to any declaration. The Association contends, and the Court of Appeal
concluded, that use restrictions in amended declarations are equitable servitudes
because section 1354(a) makes no distinction between restrictions contained in the
original declaration and those added to the declaration through amendment. We
agree with the Association that section 1354(a) facially applies to all covenants
and restrictions in the declaration, irrespective of when such covenants and
restrictions were incorporated into the declaration.
The text of section 1354(a) belies Terifaj’s contention that covenants and
restrictions must meet the common law requirements of equitable servitudes
before they may be enforced against a current homeowner. That section does not
provide that covenants and restrictions are enforceable only if they meet the
common law requirements of equitable servitudes, but clearly provides that
covenants and restrictions in the declaration “shall be enforceable equitable
servitudes, unless unreasonable” and shall bind all owners. (§ 1354(a), italics
added.) This language could mean one of two things, both of which undermine
Terifaj’s contention. Such restrictions are deemed to be equitable servitudes
notwithstanding their failure to meet the technical requirements of equitable
servitudes; that is, the Legislature has made such restrictions enforceable equitable
servitudes by virtue of their inclusion in the declaration. Or, such restrictions may
simply be enforceable in the same manner as equitable servitudes, with equitable
remedies available to the Association, including injunctive relief. Either reading
precludes the conclusion that the Legislature intended to incorporate the technical
requirements of equitable servitudes into the statute. This interpretation appears
compelled by the observation that accepting Terifaj’s position would, in effect,
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nullify the amendment provisions in the Davis-Stirling Act because homeowners
could argue, as does Terifaj here, that they did not have notice of the particular use
restriction enacted pursuant to those provisions. A homeowners association, thus,
would be unable to seek injunctive relief to compel a complaining homeowner to
comply with duly promulgated restrictions pursuant to section 1355(b). We do not
think the Legislature intended such an anomalous result.
We therefore agree with the Court of Appeal that section 1354(a) governs
enforcement of an amendment to a declaration because that section does not
distinguish between an original and an amended declaration. The Legislature, by
using expansive language in section 1354(a), intended all covenants and
restrictions in the declaration to be enforceable against all homeowners under that
provision. Only if the covenant or restriction in question is unreasonable will it be
unenforceable under section 1354(a).
Accordingly, we conclude that section 1354(a) applies to enforcement
actions relating not only to the covenants and restrictions in the original
declaration, but also covenants and restrictions in any declaration.8 We are left
then with the issue whether the deferential Nahrstedt standard of presumptive
reasonableness applies to use restrictions adopted and recorded after a challenging
homeowner has purchased his or her individual interest.
C.
We interpreted section 1354(a) in Nahrstedt, supra, 8 Cal.4th 361, and
held, pursuant to principles distilled from various authorities and the text of

8
Because the Association amended the Declaration pursuant to section
1355(b) and filed an amended complaint based on the newly enacted and recorded
no-pet restriction, we need not decide in this case whether the Association would
have been entitled to equitable relief based on Terifaj’s violation of the unrecorded
no-pet rule passed pursuant to the 1962 Declaration.
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section 1354(a), that covenants and restrictions in recorded declarations of
common interest developments are presumptively reasonable (Nahrstedt, supra, at
p. 380), and are enforceable “unless they are wholly arbitrary, violate a
fundamental public policy, or impose a burden on the use of affected land that far
outweighs any benefit” (id. at p. 382).
In articulating the judicial standard of review to be applied to such
restrictions, we relied on the language of section 1354(a) and noted that the prior
version of section 1354(a) provided that covenants and restrictions in recorded
declarations “ ‘shall be enforceable equitable servitudes where reasonable’ ”
(Nahrstedt, supra, 8 Cal.4th at p. 380; former § 1355, Stats. 1963, ch. 860, § 3,
p. 2092), and that the Legislature’s use of the double negative “unless
unreasonable” in the current version of the statute “cloaked use restrictions
contained in a condominium development’s recorded declaration with a
presumption of reasonableness by shifting the burden of proving otherwise to the
party challenging the use restriction.” (Nahrstedt, supra, 8 Cal.4th at p. 380.)
The Association contends Nahrstedt’s deferential standard applies to
subsequently adopted and recorded use restrictions incorporated into a
development’s declaration. Terifaj disagrees, emphasizing that our conclusion in
Nahrstedt was based on the fact that the use restriction in that case was contained
in a declaration recorded prior to the homeowner’s purchase, and relies on our
reasoning that “giving deference to use restrictions contained in a condominium
project’s originating documents protects the general expectations of condominium
owners ‘that restrictions in place at the time they purchase their units will be
enforceable.’ (Note, Judicial Review of Condominium Rulemaking [(1981)] 94
Harv. L.Rev. 647, 653; Ellickson, Cities and Homeowners’ Associations (1982)
130 U.Pa. L.Rev. 1519, 1526-1527 [stating that association members
‘unanimously consent to the provisions in the association’s original documents’
16

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and courts therefore should not scrutinize such documents for ‘reasonableness.’].)”
(Nahrstedt, supra, 8 Cal.4th at p. 377.)
In Nahrstedt, supra, 8 Cal.4th 361, the homeowner, who had three indoor
cats, sought to prevent the condominium homeowners association from enforcing
a no-pet restriction against her because, she contended, her cats did not make noise
and were not a nuisance (id. at p. 367), and she had been unaware of the restriction
when she purchased her unit (id. at p. 369). Applying the deferential standard, we
held the no-pet restriction was enforceable because the homeowner failed to meet
the burden placed on her, as the party challenging the restriction, to show that the
restriction was “unreasonable.” (Id. at p. 389.)
Unlike in this case, Nahrstedt involved a pet restriction contained in a
development’s originating declaration that was recorded prior to the challenging
homeowner’s purchase, a fact we emphasized throughout our discussion. Because
of that factual difference, much of reasoning in that decision is not necessarily
relevant to the resolution of this case. However, Nahrstedt does contain reasoning
that arguably supports the conclusion that subsequently enacted and recorded use
restrictions should receive greater judicial scrutiny. We observed in Nahrstedt that
other jurisdictions, “lacking . . . legislative guidance,” applied some form of
reasonableness analysis to use restrictions in common interest developments.
Significantly, we noted that some courts applied “the ‘reasonableness’ standard
only to those restrictions adopted by majority vote of the homeowners or enacted
under the rulemaking power of an association’s governing board, and would not
apply this test to restrictions included in a planned development project’s recorded
declaration or master deed.” (Nahrstedt, supra, 8 Cal.4th at p. 376.)
We discussed, in particular, Hidden Harbour Estates v. Basso
(Fla.Dist.Ct.App. 1981) 393 So.2d 637 (Basso), in which a Florida appellate court
delineated two categories of restrictions — those found in the development’s
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declaration and those later promulgated by an association’s board of directors.
Restrictions found in the development’s declaration are “clothed with a very
strong presumption of validity which arises from the fact that each individual unit
owner purchases his unit knowing of and accepting the restrictions to be
imposed,” while restrictions in the second category are subjected to a
reasonableness analysis. (Id. at pp. 639-640; Nahrstedt, supra, at pp. 376-377.)
Basso imposed a reasonableness analysis to rules promulgated by a board of
directors or decisions by the board denying a certain use when the decision falls
within the board’s authority, explaining the reason for the more stringent standard
is “to somewhat fetter the discretion of the board of directors.” (Basso, supra, at
p. 640.) While the Basso court spoke of restrictions in the declaration, without
distinguishing the original declaration from restrictions subsequently adopted
through amendment, the reference to “each individual unit owner” purchasing
with knowledge “of and accepting the restrictions to be imposed” (id. at p. 639),
makes clear that the court was referring to the founding declaration or one in
existence at the time of purchase.
We also discussed Noble v. Murphy (Mass.App.Ct. 1993) 612 N.E.2d 266.
In that case, the original recorded bylaws of a condominium development
incorporated the development’s rules and regulations, which included a no-pet
rule. (Id. at p. 270.) In the course of upholding the pet restriction, which had been
added to the recorded bylaws prior to the challenging homeowner’s purchase of a
unit, the court stated that “[a] condominium use restriction appearing in
originating documents which predate the purchase of individual units may be
subject to even more liberal review than if promulgated after units have been
individually acquired.” (Ibid.; Nahrstedt, supra, 8 Cal.4th at p. 377.)
Based on this discussion and because we explained that our interpretation
of section 1354(a) was consistent with “judicial decisions in other jurisdictions
18

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that have applied a presumption of validity to the recorded land use restrictions of
a common interest development” (Nahrstedt, supra, 8 Cal.4th at p. 382, citing
Noble and Basso), we have acknowledged that “some of our reasoning arguably
suggested a distinction between originating [covenants and restrictions] and
subsequently promulgated use restrictions.” (Lamden v. La Jolla Shores
Clubdominium Homeowners Association (1999) 21 Cal.4th 249, 264.) Our
discussion of Basso and Noble suggests that we would not necessarily apply the
same deferential standard to subsequently enacted use restrictions. For the reasons
that follow, however, we conclude that subsequently promulgated and recorded
use restrictions are entitled to the same judicial deference accorded covenants and
restrictions in original declarations, that is, they are presumptively valid, and the
burden of proving otherwise rests upon the challenging homeowner.
Although we discussed and seemingly approved of the distinction drawn in
Basso between restrictions in the original declaration and those subsequently
adopted, we did not hold or state in Nahrstedt that we were adopting such an
approach. Instead we prefaced our discussion of Basso and Noble with the caveat
that those decisions were from “states lacking . . . legislative guidance.”
(Nahrstedt, supra, 8 Cal.4th at p. 376.) We, however, have been provided
guidance by our Legislature through the Davis-Stirling Act, and as the Court of
Appeal observed, the statutory language is “controlling.” Section 1354(a)
unambiguously refers to the “declaration” and provides that the covenants and
restrictions in the declaration are equitable servitudes that are enforceable unless
unreasonable. It further provides that the covenants and restrictions shall bind all
owners of separate interests. (§ 1354(a).) We have previously construed the
phrase “unless unreasonable” in section 1354(a) to mean that restrictions in a
declaration are enforceable unless they are arbitrary, violate public policy, or
impose a burden on the land that outweighs any benefits. (Nahrstedt, supra, 8
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Cal.4th at p. 389.) This interpretation was governed by the Legislature’s use of
the double negative “unless unreasonable” in place of the previous phrase “where
reasonable.” (Id. at p. 380.)
While our interpretation was consistent with Basso, Basso was not the
primary basis for our holding — the statutory language was. As we concluded,
“[i]n section 1354, the Legislature has specifically addressed the subject of the
enforcement of use restrictions that, like the one in this case prohibiting the
keeping of certain animals, are recorded in the declaration of a condominium or
other common interest development. The Legislature has mandated judicial
enforcement of those restrictions unless they are shown to be unreasonable when
applied to the development as a whole.” (Nahrstedt, supra, 8 Cal.4th at
pp. 388-389, italics added.)
Nor did Nahrstedt imply that we would apply a more stringent standard,
such as objective reasonableness, to restrictions in recorded amended declarations,
as opposed to unrecorded use restrictions promulgated by a board of directors of a
homeowners association or other unrecorded rules and regulations. (E.g., Lamden
v. La Jolla Shores Clubdominium Homeowners Association, supra, 21 Cal.4th at
p. 264; Rancho Santa Fe Association v. Dolan-King (2004) 115 Cal.App.4th 28,
38 & fn. 2.)
Moreover, there is no language in section 1355(b) that indicates a different
standard for enforcing its provisions should, or may, apply. (California Fed.
Savings & Loan Assn. v. City of Los Angeles (1995) 11 Cal.4th 342, 349 [“It is our
task to construe, not to amend, the statute.”].) Once the declaration is amended
and recorded, section 1354(a) governs its enforcement, and hence, amendments
are enforceable unless unreasonable. Had the Legislature intended a different
standard to apply to subsequently adopted and recorded use restrictions than apply
to restrictions in the original declaration, it would have so provided.
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The language of another amendment provision in the Davis-Stirling Act —
section 1356, subdivision (c)(5) — demonstrates that the Legislature, if it wished,
could have provided that an amendment must be reasonable to be enforceable
against a current homeowner under section 1354(a). When the declaration itself
provides that it may be amended only with a supermajority vote, section 1356
allows a homeowners association or any homeowner in a common interest
development to petition the court for a reduction of the required percentage of
votes necessary for the passage of an amendment. (§ 1356, subd. (a).) Pursuant to
section 1356, the court may reduce the required minimum percentage of votes
needed to amend the declaration, provided a majority of the homeowners approve
the amendment and the petition complies with the requirements set out in
subdivision (a)(1) through (5). (§ 1356, subd. (a).) Under section 1356,
subdivision (c), it is within the court’s discretion to approve or deny such a
petition, but in order to grant the petition, the court must find, inter alia, that “[t]he
amendment is reasonable.” (§ 1356, subd. (c)(5).)9

9 Section
1356,
subdivision (c), provides in full: “The court may, but shall
not be required to, grant the petition if it finds all of the following: [¶] (1) The
petitioner has given not less than 15 days written notice of the court hearing to all
members of the association, to any mortgagee of a mortgage or beneficiary of a
deed of trust who is entitled to notice under the terms of the declaration, and to the
city, county, or city and county in which the common interest development is
located that is entitled to notice under the terms of the declaration. [¶] (2)
Balloting on the proposed amendment was conducted in accordance with all
applicable provisions of the governing documents. [¶] (3) A reasonably diligent
effort was made to permit all eligible members to vote on the proposed
amendment. [¶] (4) Owners having more than 50 percent of the votes, in a single
class voting structure, voted in favor of the amendment. In a voting structure with
more than one class, where the declaration requires a majority of more than one
class to vote in favor of the amendment, owners having more than 50 percent of
the votes of each class required by the declaration to vote in favor of the
amendment voted in favor of the amendment. [¶] (5) The amendment is

(footnote continued on next page)
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No similar limitation was inserted in the text of section 1355(b). Section
1355(b) enumerates the criteria necessary for the amendment of a declaration
when the declaration is silent on whether it may be amended, and once the
requirements are met, including recordation, the amendment becomes effective
and binds all homeowners. Given that section 1356 was added to the Davis-
Stirling Act before section 1355(b), it is unlikely the omission of a reasonableness
standard was an oversight. This point is buttressed by the fact that section 1355,
subdivision (a), which provides for amendment of the declaration pursuant to
either the amendment provisions in the declaration itself, or pursuant to other
amendment provisions in the Davis-Stirling Act, was enacted as part of the
original Act, yet it also does not contain a reasonableness element as does section
1356.
D.
Applying the deferential Nahrstedt standard of review to the Amended
Declaration in this case, we hold, as we did in Nahrstedt, that the recorded
restriction prohibiting pets is not unreasonable as a matter of law.10 Terifaj,
however, contends that a subsequent amendment to the Davis-Stirling Act,
providing in relevant part that “no governing documents shall prohibit the owner
of a separate interest . . . from keeping at least one pet” (§ 1360.5, added by Stats.
2000, ch. 551, § 2 [Assem. Bill No. 860]), calls into question Nahrstedt’s ultimate

(footnote continued from previous page)

reasonable. [¶] (6) Granting the petition is not improper for any reason stated in
subdivision (e).”
10
We do not quarrel with Terifaj about the benefits of pet ownership, but that
is not the issue in this case. The primary issue in this case is whether subsequently
enacted and recorded use restrictions may be enforced against a current
homeowner.
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holding that the no-pet restriction in that case was not unreasonable. Section
1360.5, however, does not aid Terifaj. As the Court of Appeal observed,
subdivision (e) of section 1360.5 clearly provides that its provisions “shall only
apply to governing documents entered into, amended, or otherwise modified on or
after [January 1, 2001].” The Declaration in this case was amended and recorded
in January 2000, a year prior to section 1360.5’s operative date. To allow section
1360.5 to undermine Nahrstedt’s holding in this case would essentially render
section 1360.5’s operative date meaningless. Any homeowner could challenge a
recorded no-pet restriction on the basis of section 1360.5 without regard to its
effective date.
Moreover, the fact that the Legislature has passed section 1360.5 does not
undermine our conclusion in Nahrstedt that a restriction prohibiting pets may be
reasonable. By enacting section 1360.5, the Legislature did not declare that
prohibiting pets is unreasonable, but merely demonstrated a legislative preference
for allowing homeowners in common interest developments to keep at least one
pet. As we observed in Nahrstedt, prohibiting pets is “rationally related to health,
sanitation and noise concerns legitimately held by residents” of common interest
developments. (Nahrstedt, supra, 8 Cal.4th at p. 386.) While Nahrstedt involved
a “high-density” project, the concerns expressed in that case apply equally to the
present case, which involves a smaller development. Therefore, nothing in section
1360.5 undermines Nahrstedt’s holding that a no-pet restriction may be reasonable
given the characteristics of common interest developments such as condominium
projects.11

11
Terifaj, supported by the California Council of the Blind as amicus curiae,
contends that the injunction issued in this case is overbroad and infringes on her
civil rights because she is prohibited from inviting to her unit guests who require

(footnote continued on next page)
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E.
Terifaj contends that even if the recorded no-pet restriction is an
enforceable equitable servitude, the trial court erred in awarding the Association
attorney fees for prosecuting the original complaint, which was based, according
to Terifaj, on the unrecorded and unenforceable no-pet rule. With respect to the
original complaint, she contends she was the prevailing party. We conclude the
trial court did not abuse its discretion in determining that the Association was the
prevailing party (Heather Farms Homeowners Association v. Robinson (1994) 21
Cal.App.4th 1568, 1574) and awarding the Association $15,000 in attorney fees.
On a “practical level” (ibid.), the Association “achieved its main litigation
objective” (Castro v. Superior Court (2004) 116 Cal.App.4th 1010, 1020) in
ultimately securing an injunction to enjoin Terifaj from bringing her dog onto the
development. Moreover, Terifaj fails to provide evidence that the trial court
actually awarded the Association attorney fees for prosecuting the original
complaint. The record discloses the Association sought $19,787 in attorney fees,
more than the trial court awarded. Presumably, the court took into account
Terifaj’s argument regarding the original complaint. In any event, Terifaj fails to
establish that the trial court abused its discretion in awarding the Association

(footnote continued from previous page)

guide dogs or leasing her unit to an individual requiring a guide dog. This
contention is hypothetical since there is no indication the Association will not
permit blind persons to use guide dogs on the property. Furthermore, despite
Terifaj’s implication to the contrary (“the Court of Appeal reasons that the issue of
overbreadth does not apply”), the Court of Appeal did not mention, much less
address this issue, and Terifaj did not seek rehearing in the Court of Appeal to
address this alleged omission. We, therefore, decline to address her contention
here. (Cal. Rules of Court, rule 28(c)(2).)
24

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$15,000 in attorney fees. (See Rancho Santa Fe Association v. Dolan-King,
supra, 115 Cal.App.4th at p. 46.)
III. DISPOSITION
For the foregoing reasons, we affirm the judgment of the Court of Appeal.
MORENO, J.
WE CONCUR: GEORGE, C. J.
KENNARD,
J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
BROWN,
J.
25

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Villa De Las Palmas Homeowners Association v. Terifaj
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 99 Cal.App.4th 1202
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S109123
Date Filed: June 14, 2004
__________________________________________________________________________________

Court:

Superior
County: Riverside
Judge: Christopher J. Sheldon

__________________________________________________________________________________

Attorneys for Appellant:

Law Office of Russell P. Nowell and Russell P. Nowell for Defendant and Appellant.

Jeff Thom for California Council of the Blind as Amicus Curiae on behalf of Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Fiore, Racobs & Powers, Peter E. Racobs and Margaret G. Wangler for Plaintiff and Respondent.

26

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Russell Nowell
Law Office of Russell P. Nowell
259 South Randolph Avenue, Suite 130
Brea, CA 92821
(714) 671-3030

Peter E. Racobs
Fiore, Racobs & Power
74-361 Highway 111, Suite 1
Palm Desert, CA 92260
(760) 776-6511

Margaret G. Wangler
Fiore, Racobs & Power
74-361 Highway 111, Suite 1
Palm Desert, CA 92260
(760) 776-6511

27

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Opinion Information

Date:	Docket Number:
Mon, 06/14/2004	S109123

Disposition
Jun 14 2004	Opinion: Affirmed

Dockets
Aug 7 2002	Petition for review filed   counsel for Paula Terifaj, as Trustee, etc.
Aug 13 2002	Record requested
Aug 16 2002	Received Court of Appeal record   1-doghouse
Sep 25 2002	Petition for Review Granted (civil case)   Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.
Sep 25 2002	Letter sent to:   counsel enclosing a copy of the Court's order and the Certification of Interested Entities or Persons form.
Sep 25 2002	Note:   Lower Court information corrected, as follows: Court of Appeal opinion filed date changed from 7/12/2002 to: 6/28/2002. Riverside County Superior Court Judge changed from Charles D. Sheldon to: Christopher J. Sheldon. Counsel for Respondent Villa de Las Palmas added to docket: Margaret G. Wangler of Fiore Racobs & Powers.
Oct 1 2002	Received Court of Appeal record   envelope of exhibits
Oct 3 2002	Certification of interested entities or persons filed   by Russell P. Nowell, attorney for defendant and appellant Terifaj. Counsel's attached letter dated 9/30/2002, indicates that he is a solo practitioner. (firm noted herein)
Oct 7 2002	Certification of interested entities or persons filed   by Margaret G. Wangler, Attorney for Plaintiff and Resondent Villa de Las Palmas
Oct 25 2002	Opening brief on the merits filed   appellant PAULA TERIFAJ
Nov 22 2002	Answer brief on the merits filed   by Plaintiff and Respondent Villa De Las Palmas Homeowners Association
Dec 11 2002	Reply brief filed (case fully briefed)   by appellant Paula Terifaj
Jan 10 2003	Received application to file amicus curiae brief; with brief   under same cover; California Council of the Blind on behalf of appellant Dr. Paula Terifaj, As Trustee
Jan 16 2003	Note:
Jan 21 2003	Permission to file amicus curiae brief granted   The application of California Council of the Blind for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Jan 21 2003	Amicus Curiae Brief filed by:   California Council of the Blind in support of appellant.
Feb 10 2003	Response to amicus curiae brief filed   by resp to the A/C of Calif. Council of the Blind.
Mar 10 2004	Case ordered on calendar   4-6-04, 9am, L.A.
Mar 19 2004	Filed:   resp's application to divide oral argument time with co-counsel.
Mar 25 2004	Supplemental brief filed   by plaintiff and respondent (Villa De Las Palmas Homeowners Association)
Apr 2 2004	Order filed   Permission granted for two counsel to present oral argument on behalf of resp.
Apr 2 2004	Order filed   Permission granted for resp to allocate 10 min oral argument time to atty Margaret G. Wangler.
Apr 6 2004	Cause argued and submitted
Jun 14 2004	Opinion filed: Judgment affirmed in full   Opinion by Moreno, J. -- joined by George, C.J., Kennard, Baxter, Werdegar, Chin, & Brown, JJ. [Court of Appeal Judgment]
Jul 16 2004	Remittitur issued (civil case)
Jul 22 2004	Received:   Receipt for remittitur from Fourth District, Division Two, signed for by Kelly Conn, Deputy Clerk.
Apr 23 2008	Note:
Apr 25 2008	Received:   Record back from the Los Angeles Office -- one doghouse

Briefs
Oct 25 2002	Opening brief on the merits filed
Nov 22 2002	Answer brief on the merits filed
Dec 11 2002	Reply brief filed (case fully briefed)
Jan 21 2003	Amicus Curiae Brief filed by:
Feb 10 2003	Response to amicus curiae brief filed

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