Thirty-two million Americans live in common interest developments (CIDs);1 this amounts to one out of eight U.S. residents.2 Of those thirty-two million, nearly one-fifth are in California,3 representing a full twenty percent of the state's
population.4 Further, given the popularity of such developments and their rapid rate of growth,5 it is projected that CIDs will house between twenty-five and thirty percent of all U.S. residents by the year 2000.6 Nearly half of this rapidly
growing segment of the housing market are condominiums.7 Though popular in Europe for many years, the condominium was virtually unheard of in the United States until the 1960's.1 The subsequent boom in popularity has been attributed to a number of factors, including the increased cost of single family housing,9 the availability of amenities at a reasonable price,' 0 the substantial tax advantages of homeowner status,1 and the availability of mortgage insurance. Whatever the reasons for this dramatic increase in popularity, condominium growth has been explosive in the United States and shows little sign of slowing.13 As a result, present day developments are often so large that they resemble independent municipalities, providing such services as street repair, street lighting, and utilities. One of the central reasons for the tremendous popularity of CIDs is the unique framework of rights, restrictions, and use rights they offer buyers. 1 These are comprised of various covenants, easements, and servitudes included in the master deed or declaration. 16 These covenants, conditions, and restrictions (CC&Rs), though often desirable, can impose stiff
restrictions on homeowners.' 7 The CC&Rs can control the height of hedges, the style of home exteriors, open garage doors, the displaying of the American flag,' 8 types of vehicles driven by residents, 19 spouses below a certain age, signs, or even a goodnight kiss on the front steps.20 However, it is the ability to restrict pets that led to the recent California Supreme Court case, Nahrstedt v. Lakeside Village Condominium Ass'n.21 Nahrstedt involved the violation of a restriction in the declaration that limited pet ownership to "domestic fish and birds."22 Natore Nahrstedt owned three cats in violation of this restriction.2 3 When the homeowners association fined her, she challenged the restriction as unreasonable because her cats were "noiseless" and "created no nuisance."24 The California Supreme Court overturned the appellate court holding, which had found that Nahrstedt had stated a cause of action, because the restriction was potentially unreasonable.25 The supreme court decision established a new and higher standard for judicial review of challenges to CID restrictions by preventing the examination of any particular facts and instead limiting judicial review to an examination of the restriction on its face.26 In its holding, the court relied on the need for both preservation of the social fabric of the CID and judicial efficiency.27 This comment examines the holdings and rationales of
Nahrstedt and its underlying policy considerations of judicial and financial efficiency.28 Though the efficiency concerns of the court are well founded, this comment attempts to show how these concerns might be addressed without unnecessarily blocking CID owners from the reasonable enjoyment of their units.29 This comment will also explore how present practices in CID restriction enforcement result in inefficiency and contributed to the result in the Nahrstedt case.3 This comment proposes that the decisions of a CID association should be subject to substantial evidence review under a writ of administrative mandamus in accordance with California Civil Procedure Code section 1094.5.31 Under such a system, the CID association would have to show that there is substantial evidence of a provable harm resulting from the violation of the restriction. 2 This would protect the property interests of the other unit owners while curtailing the sometimes tyrannical enforcement of CID associations.