Kleinhams v. Kunsman

Filed 3/13/07 Kleinhams v. Kunsman CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Plumas)

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Eleven people who own lots in a residential subdivision outside Portola sought to prevent defendants Harold and Norma Kunsman from completing a 5,000 square-foot garage on their lot in the subdivision.^[1] The trial court found the proposed structure would violate setback and size restrictions found in a declaration of restrictions recorded when the subdivision was created in 1958, but the court refused to enforce those restrictions because it found plaintiffs had waived their right to enforce the restrictions and were guilty of laches. Both findings rested largely (although not entirely) on the failure of plaintiffs and their predecessors to establish and operate an architectural control committee provided for in the declaration of restrictions. The trial court felt that by failing to establish and operate such a committee, the right to enforce the restrictions had been lost absent prospective notice of an intent to enforce the restrictions.

We conclude the trial courts findings of waiver and laches are not supported by substantial evidence. As we will explain, the architectural control committee that was provided for in the declaration of restrictions had no role in implementing or enforcing the setback and size restrictions the Kunsmans building violated. Thus, the failure to establish that committee by itself could not result in a loss of the right to enforce those restrictions. We also conclude there is no other basis in the record to support the trial courts findings of waiver and laches. Accordingly, we will reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In 1958, Albion and Clare Joy subdivided property they owned on the outskirts of the City of Portola in Plumas County to create a residential subdivision known as Alpine Acres. The subdivision consists of 18 lots, all but two of which adjoin a street now known as East Magnolia Avenue, which runs generally northeast through the subdivision.^[2] In connection with the creation of Alpine Acres, the Joys recorded a Declaration of Lots [sic] Restrictions (the declaration) which set forth various restrictions, covenants and conditions relating to use of the lots.

Pertinent portions of part C of the declaration, entitled RESIDENTIAL AREA COVENANTS, are as follows:

C-1. Land Use and Building Type. No lot shall be used except for residential purposes. No building shall be erected, altered, placed, or permitted to remain on any lot other than one single family dwelling not to exceed one and one-half stories in height and a private garage for not more than three cars and one accessory building.

C-2. Architectural Control. No building shall be erected, placed, or altered on any lot until the construction plans and specifications and a plan showing the location of the structure have been approved by the architectural control committee as to quality of workmanship and material, harmony of external design with existing structures, and location with respect to topography and finish grade elevation. No fence or wall shall be erected, placed, or altered on any lot nearer to any street than the mini[m]um building setback line unless similarly approved. Approval shall be as provided in Part D.

[] . . . []

C-4. Building Location on All Lots Southeasterly from Magnolia Avenue. No building shall be located on any lot nearer than 20 feet to the front lot line, . . . or nearer than 20 feet to an interior lot line . . . .

[] . . . []

C-6. Building Location. With written approval of the Architectural Control Committee, a one-story attached garage or other permitted accessory building may be located nearer to a street than above provided, but no nearer than 10 feet to any street line, where in the opinion of said committee the location and architect[ur]al design of such proposed garage will not detract materially from the appearance and value of other properties. Furthermore, a dwelling may be located nearer to a street than provided, but not nearer than 15 feet to any street line.

Other restrictions in the declaration specify the minimum size of houses allowed on the lots, bar the use of temporary structures as residences, limit signage, and provide for a minimum amount of off-street parking, among other things.

Part D of the declaration identifies the original three members of the architectural control committee and provides for their replacement as necessary and also specifies the procedure for obtaining the committees approval, as required earlier in the declaration.

The Kunsmans acquired lot No. 6 on the southeast side of East Magnolia Avenue in June 2002, but did not move into the property until August 1, 2004. The month before, in July 2004, the Kunsmans took delivery of 16 telephone poles on the property. At the time, Harold was considering building a pole barn for his hobby, which is collecting and working on vintage race cars, motorcycles, and hot rods. Ultimately, Harold planned to store 10 cars and trucks, three NASCAR race cars, a 30-foot race car trailer, 16 motorcycles, a go cart, an RV (if and when he purchased one), and numerous tools in the barn.

When the telephone poles were delivered, two of the Kunsmans neighbors -- plaintiffs Al Engel and Kathy Daley -- confronted him about what he had planned. When he told them he was considering building a pole barn, Kathy Daley told him, We have CC&Rs [Covenants, Conditions & Restrictions] here. At trial, Harold claimed he knew nothing about CC&Rs; he thought Daley meant [a homeowners] association which did not exist.

At this time, there was no functioning, appointed architectural control committee in Alpine Acres.

In September 2004, the Kunsmans decided to build a steel structure rather than a pole barn. They applied for a timber harvest exemption from the Department of Forestry and posted and mailed to neighbors a notice of their intent to remove some trees from [their] lot . . . for the purpose of building a detached garage. Not everyone received the notice. Around the same time, Harold signed a contract to purchase a steel building from Steelbuildings.com and paid a deposit to generate plans to submit to the county.

In October 2004, the Kunsmans applied for a building permit from the county to build a garage, [for] RV and car parking. According to the plan attached to the application, the proposed garage was to be 50 feet wide and 100 feet long and located toward the northwest corner of the lot (near the street). The county approved the application and issued a building permit to the Kunsmans in November 2004. The permit specified the required setbacks as 20 feet from the front of the lot and 5 feet from the side.

In mid-October, the Kunsmans began working on the project by removing trees and grading and leveling the property. After the building permit was issued, footings were dug. Although the Kunsmans planned for the building to be set back 25 feet from the street and 10 feet from the side lot line (to give them a five-foot cushion from the county-required setbacks), when the digging began, the contractor ran into some massive granite boulders that required the building to be moved five feet further away from the side lot line. This left the Kunsmans with a front setback of 25 feet (a later survey showed the setback to be 24.8 feet) and a side yard setback of 15 feet. The side yard setback was five feet less than required by the declaration.

After the footings were dug, the concrete slab was poured in late November. At least one of the plaintiffs, Ursula Kleinhans, saw the slab being poured, but it did not occur to her the Kunsmans intended to erect a building that would occupy the entire 5,000 square foot slab; instead, she imagined a detached garage as it is in Alpine Acres in every house, except one with a lot of concrete around it, perhaps (she thought) because the Kunsmans dont like to get their shoes muddy.

Throughout the winter, the slab was covered with tarps and snow. In mid-February, Harold began removing the snow to prepare for construction of the building. When the Kleinhans returned from a trip in late February, they discovered the Kunsmans had erected a steel frame for the building. They contacted the county and held a neighborhood meeting on March 2. A representative from the Plumas County Board of Supervisors spoke at the meeting and suggested they appeal to the board to reevaluate the planning commissions decision to issue the Kunsmans a building permit. The board rejected their appeal by a four-to-three vote and informed them that enforcement of the CC&Rs was not within the countys power and that if they wanted to proceed further they needed legal counsel.

On March 28, 2005, plaintiffs filed a complaint for injunctive and declaratory relief and damages against the Kunsmans. The complaint alleged the Kunsmans building violated the restrictions in the declaration because, among other things, it violated the front and side setbacks and exceeded the size limitations for a private garage for not more than three cars. The complaint also alleged the building constituted a nuisance that should be abated. That same day, the trial court entered a temporary restraining order prohibiting the Kunsmans from continuing construction of the building. Subsequently, the parties stipulated to entry of a preliminary injunction.

In their answer to the complaint, the Kunsmans claimed the restrictions in the declaration were not enforceable because they ha[d] been waived, excused, or otherwise not acted upon from and after the date of recording in June of 1958. The Kunsmans also alleged that plaintiffs were guilty of laches because they sat on their hands and did nothing to seek a termination of [the Kunsmans] building project until after [the Kunsmans] ha[d] spent tens of thousands of dollars.

The case was eventually tried to the court in February 2006. The court issued its statement of decision in March 2006 and entered judgment in June, denying virtually all relief to plaintiffs. The court found the restrictions contained in the declaration were reasonable equitable servitudes of which the Kunsmans had constructive notice and that the partially completed structure, as proposed, is not in compliance with the size or set back requirements of the Declaration. The court, however, ultimately determined it would be unfair to enforce the restrictions in this case.

In analyzing the enforceability of the restrictions, the court evaluated the Kunsmans contentions that plaintiffs have acquiesced in the non-enforcement of the conditions and have thereby waived enforcement of [them], or alternatively, have unreasonably delayed in seeking the enforcement of [the] conditions to [the Kunsmans] prejudice and that balancing [the] hardships, it is unfair under the circumstances to enforce the conditions.

The court found there was insufficient evidence to conclude that the Architectural Control Committee . . . was ever formed or operated or that any of the structures or buildings in the subdivision were constructed in compliance with the conditions requiring approval by the Architectural Control Committee. The court also found there was a complete lack of uniformity in [the] development of the subdivision, including the size of the homes, the materials used for construction, the landscaping, the kinds and sizes of garages and accessory buildings, the fencing, and the setbacks from the street and side yards. The court concluded that, [i]n essence, the Declaration of Restrictions ha[s] never been implemented as the Committee that was to be formed to insure implementation of and compliance with the declaration conditions never existed.

The court also found that in addition to a general failure to implement and enforce [the declaration] over the past 50 years, there are also specific instances where either plaintiffs themselves failed to comply with restrictive conditions or acquiesced in violations by other owners in the subdivision. For example, at least two of the existing homes in the subdivision (Heavin and Daley) could be considered two story structures in violation of the height conditions and the larger metal building on the Chapman property could be viewed as not conforming with the residential purposes condition of the Declaration . . . , especially given that the building is used, at least in part, for fabrication and manufacture of metal parts as part of a business enterprise. . . . [I]t has also been established that plaintiff Kleinhans engages in a travel business from her home and that plaintiff Montgomery makes limited business use of his residence, both of which could be viewed as technical violations of the no use except for residential purposes provisions of the Declaration . . . .

Based on its finding that the various plaintiffs had acquiesced in the violation of various restrictions in the declaration, and its additional finding that the Declaration . . . is a series of inter-related restrictions that all address conditions of constructing buildings in the subdivision, the court concluded that waiver of or acquiescence to violation of some conditions could reasonably be viewed as supporting waiver or acquiescence to violation of other related building conditions. According to the court, In addition to being reasonable, conditions in [the] Declaration . . . have to be uniformly and fairly applied. . . . [I]t is manifestly unfair to now attempt to enforce conditions against one individual without some kind of notice of intent to start enforcing conditions, when those conditions have never been implemented or enforced against anyone else since their inception some 50 years ago.

On the issue of laches, the court found that when [the Kunsmans] poured a 50 by 100 concrete slab [at] the end of November 2004, the plaintiffs either knew or should have known at that time that [the Kunsmans were] planning to build a structure that was going to be objectionable to them. The court found the Kunsmans spent substantial additional money and effort toward completion of the project between the pouring of the slab and the end of March 2005 when plaintiffs filed the action. In finding that plaintiffs unreasonably delayed in seeking enforcement, however, this lapse of time was not as significant to the court as the more th[an] nearly 50 years [of] dormant period of time that all of the owners in the subdivision, including plaintiffs, failed to establish an Architectural Control Committee to implement and enforce the restrictive conditions. Elsewhere, the trial court confirmed that it is the many years of failure to implement and enforce [the] restrictive conditions that the Court primarily relies upon in finding that plaintiffs unreasonably delayed in seeking enforcement.

Having rejected plaintiffs bid to enforce the restrictions in the declaration against the Kunsmans, the court found plaintiffs evidence of diminished value to their properties as a result of [the] building . . . too speculative to support an award of damages. The court also found the building would not be so offensive or . . . so out of harmony with the neighborhood so as to constitute . . . a . . . nuisance, given that the Court intends to retain jurisdiction to assure [the Kunsmans] incorporate[] mitigating measures to minimize the visual impact and assure a more residential appearance. In the judgment, the court retained jurisdiction for the purpose of assuring the [Kunsmans] follow through with required mitigating measures including providing eaves, windows, appropriate roof and siding color scheme, and appropriate landscaping.

Following the entry of judgment, plaintiffs filed a timely notice of appeal.

DISCUSSION

I

Enforceability Of Equitable Servitudes

In an abbreviated argument, plaintiffs contend the trial court discarded a guiding precept of substantive law by ignoring subdivision (a) of Civil Code section 1354.^[3]That statute does not apply here; it is part of the Davis-Stirling Common Interest Development Act (Civ. Code, 1350 et seq.), which applies only to common interest developments. (Id., 1352.) Alpine Acres is not a common interest development because, among other things, it is not managed by a community association. (See id., 1363, subd. (a).)

Notwithstanding plaintiffs reliance on an inapplicable statute, the general concepts underlying that statute regarding the enforceability of equitable servitudes do apply here as a matter of common law. It is well settled that the right to annex conditions restricting the use of property conveyed is a necessary incident of the right to own and convey . . . . The recording of such an agreement charges future purchasers with notice of its contents [citations], and the conditions run with the title [citation]. . . . Such conditions are transferable [citations], and they may be waived or released [citations]. . . . Where under a general plan of improvement for a particular tract building restrictions are imposed equity will in proper cases enjoin the violation of such conditions by the grantee of a lot therein. . . . [S]uch an action may be maintained by the other owners of such lots or by the grantor [citations], except in cases where, due to changes in the uses to which property in the neighborhood is put, such changes being the result of causes other than their breach, it would be unjust and oppressive to give effect to the restrictions. (Childs v. Newfield (1934) 136 Cal.App. 217, 221.)

As to whether the trial court here can be deemed to have discarded these guiding precept[s] of substantive law, the answer to that question lies in the validity of the trial courts determination that it would be unfair to enforce the restrictions against the Kunsmans because of waiver or laches by plaintiffs. We address that issue below.

II

Burden Of Proof

At a hearing on plaintiffs objections to the trial courts statement of decision and proposed judgment, the court stated that it would have been very interested in seeing if there was, out there, evidence of other builders having gone to . . . an architectural control committee or the Alpine Acres Building Committee . . . . Plaintiffs attorney asked if the court was suggesting that this was a burden on the Plaintiff in this case? The court responded, I think it flows. . . . [A]t this juncture, I think that had there been a pervasive practice of running these building projects through some kind of a committee to determine compliance with the CC&Rs or to seek approval, as being in compliance with the CC&Rs, I think that, yes, the Plaintiffs should have given me that information. It . . . would have made a difference to me in my decision-making process here.

Based on this comment, plaintiffs suggest the trial court erred in relieving the Kunsmans of the burden of proof on their affirmative defenses of waiver and laches and instead shifting the burden of disproving those defenses to plaintiffs. We find no such error. Based on the trial courts comment about the lack of evidence of an operating architectural control committee, it does not appear to us the court placed the burden on plaintiffs to disprove the affirmative defenses of waiver or laches. Rather, the court was simply expressing the reasonable conclusion that if there had been an operating architectural control committee at any time in the past, the court reasonably could have expected to receive evidence of the committees operation -- such as documents evidencing the committees approval of construction plans, or testimony of owners or committee members who had been involved in the committees past operations. From the lack of such evidence,^[4]the court could reasonably infer that an operating committee did not exist. This conclusion was all the more reasonable given that the parties themselves stipulated there was no operating architectural control committee during the period the Kunsmans were considering and constructing their project. The issue, therefore, is not one regarding placement of the burden of proof, but rather what inferences could reasonably be drawn from the evidence. We discuss that issue below.

III

Waiver

Waiver of the right to enforce a restriction on the use of land is recognized as a valid defense to such an action. (Los Angeles etc. Land Co. v. Marr (1921) 187 Cal. 126, 133.) Waiver of the right to enforce a restriction on a lot in a subdivision may be found where the plaintiff has acquiesced to violations of the same or similar restrictions by other owners of land in the subdivision. (Johnstone v. Bettencourt (1961) 195 Cal.App.2d 538, 542; see also Harrison v. Frye (1957) 148 Cal.App.2d 626, 630 [The equitable defense of acquiescence arises where the complainant has acquiesced in the violation of the same type of restriction by third parties. . . . The reason for allowing this defense of acquiescence is the belief that the complainant, by his conduct in failing to seek enforcement against similar violations by third parties, has induced the defendant to assume that the restrictions are no longer in effect].)

Similarly, where multiple restrictions are imposed as part of a general plan of improvement, Waiver of the right to enforce a covenant may occur where substantially all of the landowners have acquiesced in a violation so as to indicate an abandonment of the general plan. (Kapner v. Meadowlark Ranch Assn. (2004) 116 Cal.App.4th 1182, 1189, citing Bryant v. Whitney (1918) 178 Cal. 640, 643.) This principle that a pattern of noncompliance may render restrictions unenforceable has also been referred to as the doctrine of equitable obsolescence of restrictive covenants. (Seligman v. Tucker (1970) 6 Cal.App.3d 691, 700.)

Here, the trial court essentially concluded plaintiffs had waived their right to enforce the side yard setback and garage size restrictions violated by the Kunsmans building because they had acquiesced in the lack of implementation or enforcement of restrictive conditions at other times. In support of this conclusion, the trial court relied not only on its finding of specific instances where either plaintiffs themselves failed to comply with restrictive conditions or acquiesced in violations by other owners of the subdivision, but also on its finding that there had been a general failure to implement and enforce declaration restrictions over the past 50 years, as demonstrated by the failure to form and operate an architectural control committee and by the complete lack of uniformity in development.

Plaintiffs argue the trial courts various findings of waiver are not supported by substantial evidence. We now turn to those arguments.

A

Evidence Of The Architectural Control Committees

Existence And Operation

Plaintiffs contend the evidence in the record does not support the trial courts determination that the architectural control committee provided for in the declaration was never formed and never operated. We agree, but only in part.

As to the formation of the committee, the declaration itself establishes that fact. The declaration specifically provides that [t]he architectural control committee is composed of Richard L. Joy, Louis C. DeArmond, and Herbert J. Berg. (Italics added.) Thus, in 1958 at least there was an architectural control committee.

Whether that committee, or any subsequent version of the committee, ever operated is a different question. Plaintiffs contend there is evidence of the committees operation in the record. First, they point to their exhibit No. 13, which is a letter dated March 13, 1972, that purports to be from a group called the Alpine Acres building committee in response to an owners request for a variance on a back lot line setback. Plaintiffs contend this letter contradicts the trial courts finding that the architectural control committee never operated.

Taken at face value, this letter does provide some evidence of the operation of some type of building committee at a point 30 years earlier; however, the trial court was justified in determining that this letter did not constitute substantial evidence of the operation of the architectural control committee provided for in the declaration. First, the committee referenced in the letter did not use the title of the committee provided for in the declaration. Second, the matter addressed in the letter -- a variance of a back lot line setback -- was not within the purview of the architectural control committee provided for in the declaration. Under the declaration, the architectural control committee could approve the location of a garage, dwelling, or accessory building nearer to the street than the setbacks otherwise provided in the declaration, but there was no similar provision allowing deviation from the required back lot line setback.^[5] Under these circumstances, the trial court was justified in rejecting the letter as substantial evidence of the operation of the architectural control committee provided for in the declaration.

Next, plaintiffs assert evidence of the operation of the architectural control committee can be found in the testimony of Ursula Kleinhans that she discovered the existence of some people, a committee, who were to approve the height of buildings and that neighbors received approval some 20 years previous (1985). Construed in the light most favorable to the judgment, however, Ursula Kleinhanss testimony actually supports the trial courts determination that an architectural control committee never operated in Alpine Acres.

Ursula Kleinhans testified she had lived in Alpine Acres for about 28 years, since 1978. When asked if she was aware of the restrictions for a majority of the time she lived in the subdivision, she testified that about 20 years ago (around 1985) she became aware of some people who had definite opinions of how -- of the size of a home being built or the height, but she was not aware 20 years ago of the various specific guidelines. She further testified that all [she] really knew was that there were some people, you could call it a committee, that had certain guidelines of what was okay and not. She later clarified that she learned from two families -- the Havens and the Winns -- who were seeking to build homes that appeared to be more than one story that they need[] to get approval from other people, but she did not know who the people were. She testified the Havens sent a letter to every homeowner in Alpine Acres notifying them of what the intentions were for [their] building plans and ask[ing] people to step forth and let [them] know if someone did wish to disapprove of . . . a family home taller than one story. As for the Winns, she testified that people who lived in Alpine Acres were telling [them] . . . you cant go beyond one story, but eventually they got approval, although she did not know from whom.

Taken as a whole and construed in the light most favorable to the judgment, Ursula Kleinhanss testimony supports the trial courts determination that the architectural control committee contemplated and created by the declaration never actually operated. Rather than submitting their plans to such a committee, the Havens apparently sought approval from the subdivision owners as a whole to build a house taller than one story. The court could have reasonably inferred the same was true of the Winns, or that the Winns at least got approval from those owners who were objecting to the height of the home they planned to build.

On this point, it is significant to note that under the declaration, the architectural control committee does not have the power to approve the construction of a residence taller than one and one-half stories. Thus, the approval the Havens and Winns sought from subdivision owners was not an approval the committee could have given in any event. Consequently, contrary to plaintiffs assertion, nothing about Ursula Kleinhanss testimony constituted substantial evidence of the operation of the architectural control committee provided for in the declaration.

Other evidence to which plaintiffs refer is of no more help to them. They point out that while plaintiffs Roger and Julie Montgomery did not apply to a committee for review and approval when they built their home in sometime around 2001, they complied with the restrictions affecting construction of their home, including size and setback restrictions. This evidence only tends to further support the trial courts determination that the architectural control committee provided for in the declaration never operated.

In summary, we agree there was insufficient evidence for the trial court to find that the architectural control committee was never formed; the evidence established the formation of the original committee without dispute. We do not agree, however, that the trial courts finding that the committee never operated was devoid of sufficient evidentiary support. On this record, the trial court could reasonably find that, although formed by the declaration, the architectural control committee provided for in the declaration never actually operated.

B

The Role Of The Committee

From the finding (supported by substantial evidence) that the architectural control committee provided for in the declaration never operated, it does not follow, however (as the trial court concluded), that the Declaration . . . ha[s] never been implemented. On its face, the declaration established the architectural control committee to serve only certain limited purposes. The primary role of the committee was to approve or disapprove construction plans and specifications for proposed buildings in Alpine Acres as to quality of workmanship and material, harmony of external design with existing structures, and location with respect to topography and finish grade elevation. The other role of the committee was to approve or disapprove: (1) the placement or alteration of any fence or wall closer to a street than the minimum setback line; or (2) the location of an attached garage, other accessory building, or dwelling closer to a street than the minimum setback line.

Beyond this limited role, the architectural control committee played no part in the implementation or enforcement of the numerous restrictions set forth in the declaration and had no power to excuse noncompliance with those restrictions. Those restrictions include: (1) limitation of lot use to residential purposes; (2) limitation of buildings to one single family dwelling (not to exceed one and one-half stories in height), a private garage for not more than three cars, and one accessory building per lot; (3) limitation on minimum size of dwelling; (4) limitation on location of buildings (other than as described above); (5) prohibition of noxious or offensive activities; (6) prohibition of residential structures of a temporary nature; (7) limitations on signage; (8) limitation on storage of garbage; (9) prohibition of individual sewage disposal systems; (10) limitation on individual water supply systems; and (11) requirement of off-street parking.

As for enforcement, there is nothing in the declaration that gives the architectural control committee the power to enforce any of the restrictions in the declaration, except by disapproving a proposal to locate a fence, wall, or building closer to the street than the minimum setbacks specified in the declaration. The declaration provides that [e]nforcement shall be by proceedings at law or in equity against any persons violating or attempting to violate any covenant either to restrain violation or to recover damages. Under California law, this enforcement power rests with the other owners in the subdivision individually, and not with the architectural control committee. (See, e.g., Alderson v. Cutting (1912) 163 Cal. 503, 505 [In case of a violation relief may be sought by the owner of any lot in the tract for the benefit of which the restrictions were imposed].)

Thus, contrary to the trial courts determination, the role of the architectural control committee was not to insure implementation of and compliance with the declaration conditions or to implement and enforce the restrictive conditions.^[6] Instead, the committees role was limited to approving or disapproving plans with respect to quality of workmanship and material, harmony of external design with existing structures, and location with respect to topography and finish grade elevation, as well as approving or disapproving the location of fences, walls, or buildings closer to the street than the minimum setbacks. Accordingly, the failure to establish an operating committee does not necessarily indicate a wholesale abandonment of the restrictions in the declaration or a wholesale failure to implement the declaration.

Of course, the failure to establish an operating architectural control committee is significant in one respect. As the trial court concluded, because there was no operating committee, [i]t . . . follows that no structure or building in the subdivision w[as] ever . . . constructed in compliance with [the] declaration conditions requiring approval of the structure by the Committee. Stated another way, the finding that the architectural control committee never operated in turn supports the finding that there was, in effect, a wholesale abandonment of the restriction that no building could be erected (or even altered) without the committees approval. The question is what bearing the abandonment of this restriction has on the enforceability of the remaining restrictions in the declaration, particularly the setback and size restrictions the Kunsmans building violated. We address that question below.

C

Lack Of Uniformity

In support of its determination that the declaration had never been implemented, the trial court relied not only on its findings about the architectural control committee, but also on the fact that there was a complete lack of uniformity in development. Specifically, the court noted a lack of uniformity in the size of the homes, the materials used for construction, the landscaping, the kinds and sizes of garages and accessory buildings, the fencing, and the setbacks from the street and side yards. From this lack of uniformity, the court concluded there is nothing about the appearance of the subdivision that would suggest to a reasonable person that there has been any kind of uniform application of uniform conditions or restrictions upon the construction of buildings in the subdivision.

Plaintiffs contend the lack of uniformity is irrelevant because [t]he Declaration does not contain architectural standards or guidelines addressing colors, materials or other architectural particulars. We tend to agree. Certainly lack of uniformity would be relevant to the extent it reflected violations of restrictions in the declaration, but in that case the true relevance would be in the violations that lead to the lack of uniformity, as those violations might support a waiver defense. (We discuss this point further below.) However, to the extent the trial court found the lack of uniformity significant because it would not suggest to a reasonable person that there has been any kind of uniform application of uniform conditions or restrictions upon the construction of buildings in the subdivision, that point is immaterial for purposes of the Kunsmans defense of waiver.

At the hearing on plaintiffs objections to the proposed statement of decision, the trial court explained that the lack of uniformity it observed was relevant to constructive versus actual notice on Mr. Kunsmans part, and whether or not someone like Mr. Kunsman moving into that neighborhood and looking above and beyond the recorded document, would look and see . . . some uniformity, which in the courts view would have conveyed to any reasonable person that this is a subdivision with CC&Rs. However, the fact that someone observing a neighborhood without much uniformity might have less reason to suspect the existence of CC&Rs than someone observing a more uniform neighborhood has no real bearing on whether the Kunsmans established their waiver defense here.

It is well established that mere constructive notice, rather than actual notice, of an equitable servitude is sufficient to make it enforceable against a transferee. (See, e.g., MacDonald Properties, Inc. v. Bel-Air Country Club (1977) 72 Cal.App.3d 693, 700.) Here, the trial court expressly found the Kunsmans had constructive notice of the conditions due to the recording of the Declaration . . . and reference thereto in [their] title report. Thus, it does not matter whether the Kunsmans actually acquainted themselves with the restrictions in the declaration; the fact that they had reason to know of the restrictions is sufficient. This is significant in analyzing their waiver defense because of the principle on which that defense is based.

As we have previously noted, The reason for allowing this defense . . . is the belief that the complainant, by his conduct in failing to seek enforcement against similar violations by third parties, has induced the defendant to assume that the restrictions are no longer in effect. (Harrison v. Frye, supra, 148 Cal.App.2d at p. 630.) Thus, in evaluating a waiver defense, the court considers whether someone who knows (either actually or constructively) about a restriction is nonetheless entitled to assume it is no longer in effect because other owners have violated that restriction or acquiesced in the violation of that restriction by others.

What this means is that the lack of uniformity in Alpine Acres is not relevant for purposes of determining whether the Kunsmans should have been aware of the restrictions in the declaration. They should have been aware of those restrictions because the declaration containing them was a matter of record and was referenced in their title report. The lack of uniformity would be relevant only to the extent it might have reasonably induced the Kunsmans to believe the restrictions of which they were constructively aware were no longer in effect.

The problem is that we are given no reason to believe the Kunsmans could have reasonably deduced from the lack of uniformity in Alpine Acres that the declaration was no longer in effect. Almost without exception, the declaration did not require uniformity of development in any of the particulars where the trial court found a lack of uniformity -- specifically, in the size of the homes, the materials used for construction, the landscaping, the kinds and sizes of garages and accessory buildings, the fencing, and the setbacks from the street and side yards. Thus, the lack of uniformity communicates virtually nothing about whether the restrictions in the declaration have been implemented.

The declaration does require a limited amount of uniformity in the size of homes, because a one-story house must be no less than 850 square feet and a one and one-half story house must be at least 1,200 square feet. However, the trial courts observation of a lack of uniformity in the size of homes in Alpine Acres did not include any suggestion that some of the houses were so small as to violate these restrictions. Instead, the court simply observed that some are larger homes [and] some are smaller. This fact would not have any tendency to suggest to a reasonable observer that the minimum-size restriction was no longer in effect.

The declaration also suggests a limited amount of uniformity might have been required by the architectural control committee in approving construction plans as to quality of workmanship and material and harmony of external design with existing structures. However, because neither of these criteria involve fixed standards, we are at a loss to understand how a reasonable observer could have concluded from the lack of uniformity the trial court observed that there was no operating architectural control committee in the subdivision. The trial court noted that some of the homes and other structures are stick built while others are manufactured homes, . . . there is no uniformity in materials used for construction, [and] there is no uniformity of landscaping. But the trial court did not suggest that the lack of uniformity in the buildings and landscaping was evidence of poor workmanship or materials or of a lack of harmony in external design, which in turn would have suggested there was no operating architectural control committee.

In short, the trial courts observation of a lack of uniformity does not tend to support its finding of waiver because the lack of uniformity would not have suggested to a reasonable observer who was aware of the restrictions in the declaration that any of those restrictions had been abandoned. Accordingly, we turn to the trial courts finding of actual violations of the restrictions as a basis for its finding of waiver.

D

Violations

Plaintiffs contend there was no evidence of a pervasive violation of restrictions at trial, other than as may be related to the conduct of home-business activities. No evidence was introduced to establish that plaintiffs violated or acquiesced in violation of garage size or setback restrictions. The trial court found none.

Plaintiffs are correct. Even construing the statement of decision in the light most favorable to the judgment, it appears the trial court found -- in addition to the pervasive violation of the restriction requiring plan approval by the architectural control committee -- only five violations of the restrictions in the declaration: specifically, two violations of the height restriction on houses limiting them to one and one-half stories and three violations of the restriction limiting lot use to residential purposes. Although the trial court noted a lack of uniformity in setbacks from the street and side yards, the court did not find any violation of the setback restrictions in the declaration other than the Kunsmans building. Indeed, at the hearing on plaintiffs objections to the proposed statement of decision, the trial court specifically explained that its observation of a lack of uniformity in setbacks was not intended as a statement, or a finding that I found other setback violations of the CC&Rs.

The question thus becomes this: Was the evidence of two violations of the height restriction and three violations of the residential purposes restriction, coupled with evidence that all of the structures in the subdivision had been constructed without the approval of the architectural control committee provided for in the declaration, sufficient to support the trial courts determination that the declaration was never implemented and therefore plaintiffs waived their right to enforce the side yard setback and garage size restrictions by their acquiescence in the lack of implementation or enforcement of the restrictive conditions in the declaration? We conclude the answer to that question is no.

This is not a case where substantially all of the lot owners have violated the restrictions or acquiesced in violations of the restrictions by other owners so as to indicate an abandonment of the general plan expressed in the declaration. Certainly, the landowners should have recognized that at least one of the two houses the trial court found violated the height restrictions was more than one and one-half stories tall. Indeed, Ursula Kleinhans testified that the builder of that house (Mr. Haven) sent a letter to every owner in Alpine Acres notifying them he was going to build a two-story house. That the house was built as planned evidences acquiescence in a violation of the height restriction.

Beyond that, however, there is no substantial evidence in the record of general acquiescence in the violation of restrictions contained in the declaration (other than the restriction requiring submission of plans to the architectural control committee). The only other violations the trial court found were three businesses being operated in violation of the residential purpose limitation, but there was little evidence on which owners, if any, were aware of these business activities. Ursula Kleinhans testified that the Chapmans informed her and her husband they intended to build an extra building behind their home where Chapman could conduct a business making small metal parts. Thus, there was evidence the Kleinhanses were aware the Chapmans were conducting a business on their property and might, therefore, have acquiesced in a violation of the residential purpose limitation.^[7] There was no evidence, however, that any of the other plaintiffs (let alone other lot owners in the subdivision) knew of and therefore acquiesced in that violation.^[8]

There was also evidence that Ursula Kleinhans runs a travel business out of her home,^[9]but again there was no evidence any of the other plaintiffs or lot owners (excepting her husband, of course) was aware of her business. The same is true of the incidental use by the Montgomerys of their property in connection with their handyman business.^[10]

The point is that even if these business activities constituted violations of the residential purpose restriction in the declaration, there was no evidence of widespread knowledge of and therefore acquiescence in these violations. Without evidence of such acquiescence, and without evidence of more widespread violations, there is no reasonable basis for concluding the general plan set forth in the declaration had been abandoned or had become obsolete and certainly no reason for the Kleinhans to believe it had.

That the architectural control committee never operated does not alter this conclusion. As we have noted, the committee played no part in the implementation or enforcement of the numerous restrictions set forth in the declaration and had no power to excuse noncompliance with those restrictions. Thus, even if the Kunsmans had been aware there was no operating committee, that would not have justified them in concluding that all of the restrictions in the declaration had been abandoned or were no longer in effect.

Without widespread violations and acquiescence in those violations, waiver of the right to enforce an equitable servitude can be found only where the plaintiffs have acquiesced to violations by other owners in the subdivision of the same or similar restrictions they now seek to enforce. (See Johnstone v. Bettencourt, supra, 195 Cal.App.2d at p. 542; Harrison v. Frye, supra, 148 Cal.App.2d at p. 630.) That rule does not operate here because there was no showing of any other violations of the setback or garage size restrictions, and none of the restrictions that were violated justify a finding of waiver with respect to the setback and garage size restrictions. Again, we must remember that underlying the waiver defense is the principle that it is unfair to enforce restrictions against a person who had actual or constructive knowledge of them if he or she was reasonably induced by the plaintiffs own violations and/or acquiescence in the violations of others to believe the restrictions were no longer in effect. That principle is not implicated by the other violations shown here.

To the extent the owners in Alpine Acres may all be deemed to have acquiesced in violation of the restriction against building without approval of the architectural control committee, and even assuming the Kunsmans were aware of that acquiescence, the Kunsmans would not have been justified in believing that the side yard setback and garage size restrictions were no longer in effect because everyone had built structures on their lots without the committees approval. Certainly, their project could not have been stopped because they did not seek the committees approval. Under the declaration, however, the committee has no role in enforcing the side yard setback or garage size restrictions and no power to excuse compliance with those conditions. Thus, even if the Kunsmans had reason to believe there was no operative architectural control committee and thus were excused from seeking the committees approval of their plans, that did not give them reason to believe they could erect a 5,000 square-foot garage that would violate the side yard setback and garage size restrictions in the declaration.

Similarly, even assuming the Kunsmans were aware the Chapmans, Kleinhanses, and Montgomerys were conducting limited business operations on their properties in violation of the residential purpose restriction in the declaration, and even assuming the other owners in Alpine Acres could be deemed to have acquiesced in those violations, that did not give the Kunsmans reason to believe they could build the oversized garage they planned. We simply cannot perceive how acquiescence in the operation of three apparently unobtrusive home businesses could reasonably justify the conclusion that plaintiffs had abandoned their right to object to the construction of a 5,000 square-foot steel garage in the midst of their subdivision, in violation of the restriction limiting garages to not more than three cars.

Finally, a similar conclusion applies with respect to the violations of the height restriction. The existence of 2 two-story homes in Alpine Acres could not have justified a reasonable belief by the Kunsmans that they were entitled to build a 5,000 square-foot garage in violation of the restrictions in the declaration.

E

A Different Type Of Waiver

The Kunsmans contend the trial courts finding of waiver was justified because waiver can mean the loss of . . . a right as a result of a partys failure to perform an act it is required to perform (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 983), and here the trial court could have found such a waiver based on plaintiffs failure to notify the Kunsmans of their intent to enforce the restrictions before the Kunsmans spent substantial amounts of money, time, and effort on their project. This argument fails.

The trial court concluded plaintiffs had waived their right to enforce the restrictions in the declaration against the Kunsmans by acquiescing in the lack of implementation or enforcement of the restrictions at other times and therefore could not enforce the restrictions absent some appropriate and prospective notice of intent to implement and enforce the restrictions. In other words, the court concluded plaintiffs could have reclaimed the enforcement right they had waived by notifying the Kunsmans of their intent to enforce the restrictions before the Kunsmans began their project.

Under the Kunsmans waiver argument, however, it is the failure to reclaim the right of enforcement that was already waived that can be deemed the waiver supporting their defense. Thus, the Kunsmans argument amounts to a form of bootstrapping, and we reject it on that basis. To the extent the Kunsmans also try to justify the finding of waiver based on substantial evidence of [plaintiffs] pervasive acquiescence, we have rejected that argument already.

In summary, we conclude the trial courts finding of waiver is not supported by substantial evidence.

IV

Laches

Laches is an equitable defense. It consists of a failure on the part of a plaintiff to assert his rights in a timely fashion accompanied by a period of delay with consequent results prejudicial to the defendant; in proper circumstances, it constitutes an equitable bar to the maintenance of a plaintiffs alleged cause of action. A mere delay, considered alone, does not usually constitute laches; normally, in order to be an effective bar, the delay must be disadvantageous to a defendant, and constitute a quasi-estoppel. [Citations.]

The existence of laches is a question of fact to be determined by a weighing of all of the applicable circumstances by the trial judge. Primarily, the existence of laches is to be determined by the chancellor, and an appellate tribunal

ordinarily will not interfere with the discretion of the trial judge unless there is a manifest injustice, or unless the conclusion reached in the court below does not find substantial support in the evidence. (Rouse v. Underwood (1966) 242 Cal.App.2d 316, 323.)

Here, the trial court concluded plaintiffs are guilty of laches due to the nearly 50-year dormant period of time that all owners of the subdivision, including Plaintiffs, failed to establish an Architectural Control Committee to implement and enforce the restrictive conditions resulting in an unreasonable delay in seeking enforcement.

Even if we were to assume the particular plaintiffs here could be deemed guilty of laches based, in whole or in part, on the inaction of their predecessors in interest -- a point we do not decide -- the trial courts finding of laches does not have substantial support in the evidence. That finding is premised on the determination that the owners in Alpine Acres failed to establish an Architectural Control Committee to implement and enforce the restrictive conditions. (Italics added.) As we have explained already, however, the evidence does not support the courts conclusion that it was the role of the architectural control committee to implement and enforce the restrictive conditions. In particular, under the declaration the committee had no power with respect to side yard setbacks and garage size -- the two restrictions the court found the Kunsmans building

violated. The committee could not have implemented those conditions, enforced them, or excused noncompliance with them. Thus, the failure to establish an operational architectural control committee cannot be deemed a delay, unreasonable or otherwise, in seeking enforcement of the conditions plaintiffs sought to enforce in this action.

In their answer to the complaint, the Kunsmans premised their laches defense not on the alleged failure to implement the restrictions in the declaration by failing to establish an architectural control committee, but on the alleged delay of action by plaintiffs once they were put on notice . . . that a work of improvement would be constructed on [the Kunsmans] property. The trial court, however, expressly chose not to rest its finding of laches on this basis, and the Kunsmans do not seek to justify the trial courts ruling on this basis. Under these circumstances, we have no occasion to consider whether a finding of laches based on only plaintiffs actions or inaction would have been supported by the evidence.

In conclusion, because there is no substantial evidentiary support for the trial courts findings of waiver and laches, there is no reasonable basis for the trial courts conclusion that it would be inequitable to enforce the restrictions the Kunsmans building violated. Accordingly, the trial court abused its discretion in denying plaintiffs claim for injunctive relief.

DISPOSITION

The judgment is reversed. Plaintiffs shall recover their costs on appeal. (Cal. Rules of Court, rule 8.276(a).)

ROBIE , J.

We concur:

SCOTLAND, P.J.

HULL, J.

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^[1] The eleven plaintiffs in this action are Dieter and Ursula Kleinhans, David and Collette Giovannotti, Al and Jackie Engel, Terry and Kathy Daley, Michael Emeterio, and Roger and Julie Montgomery. We will refer to them jointly as plaintiffs.

^[2] Eight lots front each side of the street, with the two remaining lots lying behind the southern most lot on the southeast side of the street. On the subdivision map, the lots on each side of the roadway are separately numbered from top to bottom (northeast to southwest) -- 8 on the northwest side and 10 on the southeast side.