From "No Tile on The Balcony" goes to court

From our friends at comes this juicy unpublished decision…

Respondent Cathedral Hill Tower Condominium Association (the Association) brought this action in 2004 to preclude condominium unit owner Larisa Garbar from installing ceramic tile on her balcony and to compel her to remove unauthorized renovations that violated the Tower's covenants, conditions, and restrictions (CC&Rs).

Cathedral Hill Tower (Tower) is a 25-story, 137-unit building in San Francisco, which was built in 1966 and converted to condominiums in 1982, with the adoption of CC&Rs that incorporate a recorded condominium map.
In May 2001, defendants purchased condominium unit 24D, a one bedroom unit on the Tower's top residential floor.2In June 2001, they began extensive renovations, which included installation of hardwood floors throughout the unit and ceramic tile on the balcony, remodeling of the kitchen and bathroom, removal of the unit's original ceiling, and construction of a raised architectural ceiling.

The Tower had sustained extensive structural damage over the years due to water intrusion. In 2002, the Board retained architect and engineer Jeff Chen to study the problem and recommend a solution. Chen recommended waterproofing the building as soon as possible, and permanent removal of coatings, tile, and other materials from the balcony surface. In June 2003, homeowners approved a $3 million waterproofing project at the Board's urging. The Board retained general contractor Everest Waterproofing and Restoration (Everest) to perform the work, using a waterproofing membrane manufactured by Tremco, and the work began in August 2003.
A dispute arose with Garbar, who sought to retile her balcony after the project's completion. Chen and Everest's president, Keith Goldstein, explained that no tile or other “`overburden' “could be placed over the waterproofing membrane and provided letters from Tremco and Everest stating the warranties would be voided if such material was installed.8The Association also presented evidence from Chen that retiling the balcony could compromise the waterproofing.
In addition to this evidence, the Association contended the CC&Rs prohibited balcony tile and thatLamdenprecluded Garbar from objecting to the Board's method of fulfilling its maintenance responsibilities.
Seeking to raise a material issue of fact regarding the Association's claim that retiling would void the warranties, Garbar presented evidence: (1) that the Tremco waterproofing membrane is compatible with tile; and (2) that placement of tile on the balcony surface would not cause leaks or other harm, and, in fact, would provide additional protection. Rabichev, a licensed architect and civil engineer, submitted a declaration in which he stated that Tremco's letter “did not mention anything about tile,” and characterized it as “a generic non-specific letter of abstract requirement to conform to manufacture[r] specifications.” He construed Tremco's letter to mean “their warranty was only valid when Tremco's specific system of installation was provided . . . .” Rabichev also stated that Chen and Goldstein admitted tile installation was feasible and that they had installed tile over waterproofing, but that Tremco would not warrant the product with tile, and the Board was unwilling to consider other alternatives.9
In granting the Association's motion, the trial court cited Article III, section 2.E of the CC&Rs (section 2.E), “which addresses restrictions on the use of balconies.” In addition, the trial court found the Association's request to enjoin Garbar from retiling her balcony “is reasonable under [Lamden]” and Article II, section 2.F of the CC&Rs, “as related to the need to maintain the building . . . .”
As explained more fully below, we agree with the trial court that section 2.E gives the Board discretion to restrict the installation of balcony tile and thatLamdeninsulates this discretionary decision from judicial scrutiny.
1.The CC&Rs Give the Board Discretion to Deny Balcony Tiling.

Read more:Cathedral Hill v. Garbar 
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