Park Row Community Assn. v. Shirk
Richard Shirk appeals from a summary judgment granted in favor of Park Row Community Association (Park Row) on Park Row's complaint for injunctive and declaratory relief. Park Row sought to enjoin Shirk from constructing certain improvements to his condominium unit without approval by Park Row's Board of Directors and obtain a judicial declaration of the parties' rights under Park Row's Declaration of Covenants, Conditions and Restrictions (CC&Rs). The court entered judgment in part permanently enjoining Shirk from commencing, continuing or completing any construction within or on the exterior of his unit, ordering him to permit Park Row to inspect any construction already completed, and restraining him from making unapproved modifications and/or alterations to his unit without Park Row's express written consent. On appeal, Shirk contends summary judgment was improper because (1) Park Row did not meet its burden of proving it exercised its power in a fair and nondiscriminatory manner; (2) a "nonwaiver" provision in the CC&Rs is void as against public policy, unconscionable and unenforceable; (3) Park Row had no authority to demand inspections under the CC&Rs; (4) he raised triable issues of fact as to whether there was any justiciable case or controversy, barring summary judgment on the declaratory relief cause of action; and (5) Park Row was not entitled to file suit because it did not comply with Civil Code section 1354. Shirk further argues the judgment violates his rights under the CC&Rs and section 1360.
Court reject all but the latter of Shirk's contentions. As for the latter, we agree the trial court's injunction sweeps too broadly because it arguably bars Shirks from "replac[ing] . . . appliances and fixtures which require no structural changes in the building" without seeking and obtaining approval by Park Row's Board of Directors. Court therefore affirm the judgment in part and remand the matter to the trial court to fashion a properly limited injunction.
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