VILLA VICENZA HOMEOWNERS ASSN. v. Nobel Court Development, LLC

Luce, Forward, Hamilton & Scripps, Charles A. Bird; Allen Matkins Leck Gamble Mallory & Natsis and Valentine S. Hoy VIII for Cross-defendant and Appellant.

Epsten Grinnell & Howell, Jon H. Epsten, Douglas W. Grinnell and Anne L. Rauch for Cross-complainant and Respondent.

BENKE, Acting P. J.—

In this case the developer of a condominium project recorded a declaration of covenants, conditions and restrictions (CC&R's) which required a homeowners association arbitrate any construction defect claim the association might have against the developer. As we explain more fully below, we find CC&R's are not an effective means of obtaining an agreement to arbitrate a homeowners association's construction defect claims against a developer.

Although both federal and state law favor the enforcement of arbitration agreements, neither federal nor state law countenance imposition of arbitration where no agreement to waive judicial remedies exists. Admittedly, in other circumstances our cases and Civil Code section 1354 treat CC&R's as equitable servitudes which bind homeowners and homeowners associations with respect to claims they may have against each other. This treatment of CC&R's is not…