What Is an Equitable Servitude? Meaning for HOA CC&Rs

Very few owners in an HOA signed the declaration that governs their home. The developer usually signed it, recorded it and then sold the lots. Even so, the board can usually enforce that declaration against the newest owner on the street and against the owner who has lived there since the first house went up.

The legal idea behind that is the equitable servitude. Once a board understands it, the declaration of covenants, conditions and restrictions (the CC&Rs) reads differently. You can see who it binds, who may enforce it and what a court will and won't do with it.

What a servitude is in plain English

A servitude is a restriction or a right attached to a piece of land. It stays with the land when the land changes hands. A rule that a lot can hold only one single-family home is a servitude. So is a neighbor's right to cross a strip of your yard.

An equitable servitude is a servitude that a court will enforce against later owners who took the land with notice of it. The word equitable refers to the kind of remedy courts traditionally use. That remedy is usually an injunction, which is a court order telling someone to stop doing something or to do something.

The declaration is usually on file in the county land records, and that filing is what generally gives notice to anyone who buys a lot later. The use, architecture, maintenance and assessment articles themselves are the subject of what a typical declaration contains.

How an equitable servitude differs from a contract

An ordinary agreement between two people is a contract. Take a hypothetical: your neighbor agrees in writing to keep a hedge trimmed below the fence line. That promise generally binds your neighbor. Whether it binds the person who buys your neighbor's house years later is a harder question, and the answer may well be no.

An equitable servitude works on a different footing. It doesn't depend on the later owner having signed anything. It binds because it was attached to the land, and the later owner took the land with notice of it. That's how a declaration recorded decades ago can reach someone who closed on a house last month.

A two-story suburban house with a garage and a wooden side fence

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The remedy differs too. A contract claim usually ends in money damages. A claim on an equitable servitude traditionally ends in an order to comply, such as an order to remove an unapproved shed. For a board, that fits the goal. The point of enforcing a covenant is usually to get the lot back in line with the declaration, and a fine on its own doesn't always do that.

How California writes equitable servitudes into law

Some states put the doctrine directly into their statutes, and California's is a clear example. California Civil Code section 5975 says the covenants and restrictions in the declaration are enforceable equitable servitudes, "unless unreasonable." They benefit and bind all owners of separate interests in the development. In that statute, a separate interest is an owned lot or unit, and the community as a whole is a common interest development.

The same section says who may enforce those covenants. Unless the declaration states otherwise, they may be enforced by any owner of a separate interest, by the association, or by both.

Rules get different treatment. Under subsection (b), governing documents other than the declaration may be enforced by the association against an owner, or by an owner against the association.

The section also covers legal costs. In an action to enforce the governing documents, the "prevailing party shall be awarded" reasonable attorney's fees and costs. The prevailing party is the side that wins. A board can recover its fees when it wins, and it can be ordered to pay the owner's fees when it loses.

FindLaw notes that its code pages may not reflect the latest law, so check the current text before relying on it. Other states treat these doctrines in their own ways. The declaration and your state's law decide how they apply in your community.

What equitable servitudes mean for your board

Nolo's guide to CC&Rs in HOAs puts the everyday result plainly: "The HOA usually enforces the CC&Rs and might penalize you if you violate them." Nolo lists fines among the possible penalties and describes liens for unpaid dues and assessments. It also notes that buyers at closing typically sign papers stating they've read the CC&Rs and agree to abide by them.

On the board's side, the recorded declaration generally binds owners who never signed it. Enforcement is aimed at compliance, so the request to an owner should name the covenant and say what bringing the lot into line looks like. And because the declaration binds every owner, the board needs to apply it to every owner.

A row of brick townhomes, each with its own driveway and garage

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Uneven enforcement can weaken a board's position when a dispute does reach a judge. An owner who gets a notice for a fence will reasonably ask about the identical fence two doors down. The habits that keep a board on solid ground are covered in how to enforce your HOA rules fairly and consistently.

When a court can refuse to enforce a covenant

A recorded covenant has limits. In California, the limit sits in the statute's own words: the covenants are enforceable "unless unreasonable." Elsewhere, how a court weighs a covenant depends on that state's law and on the facts in front of it.

That leaves a board with a practical question when a covenant looks outdated. Enforcing it as written may invite a fight the board could lose, with fees attached in states that award them. Ignoring it can leave the covenant on the books while the board's enforcement record drifts.

The cleaner path for a covenant that no longer fits the community is usually to change it through the process the declaration sets out. The steps, from drafting to the owner vote to recording, are laid out in how to amend your HOA's CC&Rs. A covenant the board suspects a court would find unreasonable is one to put in front of the association's attorney before any notice goes out.

Keeping the declaration within reach

The doctrine only helps a board that can find its own documents. Get the copy of the declaration and of each amendment on file in the county land records, and keep them together with the bylaws and rules. Read the enforcement article to see who the declaration lets enforce its covenants and what steps it requires first. Then note which of your documents are recorded and which aren't; rules and guidelines often aren't.

In HOA-OS, the board uploads the recorded declaration, each amendment, the bylaws and the rules, and sets who can open each file: anyone, residents or the board only. When an owner asks the resident assistant whether the declaration says anything about sheds, the answer comes from those uploads, and the assistant only quotes a document to people allowed to see it.

What Is an Equitable Servitude? How CC&Rs Bind Every Owner