2007 NEWSETTERS
Rule and CC&R Enforcement
Towing
New Laws for 2007
Satellite Dish Rules
 
2006 NEWSETTERS
Mandatory Election Rules and
Procedures (AB 61)
Assessment Collection (AB 137)
Amending and Rewritting
CC&R's
Towing, Traffic and Tickets
Adopting and Changing Rules
Giving Away Common Area

THE HOA LEGAL REPORT

Scott A. Hunter, Attorney at Law Email Us


 

Adopting and Changing Rules
By Scott A. Hunter, J.D


Adopting and Changing RulesMost CC&Rs empower your association to make specific rules.  These rules include more specific regulations than are contained in your CC&Rs.  Rules often include pool and club house hours, traffic speeds, noise limits, architectural rules, election and voting regulations, a fine schedule, assessment collection procedures, etc.

Procedures to Adopt or Change Rules.
A rule or rule changes must be adopted using the following procedures (required by Civil Code §§1357.100, et seq.): 

  1. Notice of the rule or rule change and a copy of the rule must be sent to all of the members by first-class mail at least 30 days before the proposed rule is adopted by the Board of Directors. 
  2. The notice must state the purpose and effect of the rule. 
  3. The decision to adopt the proposed rule must be considered and made at a meeting of the Board of Directors. 
  4. At the meeting, the Board must allow the members to comment on the proposed rule. 
  5. If the rule is adopted by the Board, then the Association must deliver a written notice of the adoption of the rule by first-class mail to each member of the Association within 15 days after adoption.
  6. Members owning 5% of the units within the development may call a special meeting to reverse a rule change made by the Board.

Which Rules Must Follow This Procedure?    
The above procedures must be used when adopting the following types of rules or rule changes:

1.   Use of the common area, including use of the common area streets, clubhouse or pool;
2.   Use of a lot or condominium unit, including any aesthetic or architectural standards that govern alteration of the lot or unit;
3.   Member discipline, including any schedule of monetary penalties for violation of rules, bylaws or CC&Rs, and any procedure for the imposition of penalties; 
4.   Standards for delinquent assessment payment plans;
5.   Procedures adopted by the association for resolution of assessment disputes;
6.   Procedures for reviewing and approving or disapproving a proposed physical change to a member's lot, unit or the common area; and
7.   Procedures for elections and voting.

Are Your Rules Enforceable?
In order for a rule to be enforceable the rule must:

1.   Be in writing;
2.   Be within the authority of the board of directors of the association (CC&Rs often restrict or limit a board’s authority to make certain rules);
3.   Be consistent with the law and the CC&Rs (a rule cannot contradict the CC&Rs);
4.   Be adopted using the procedures set forth above; and
5.   Be reasonable.

For example, if your pet rule violates laws protecting a member’s right to have a necessary companion pet or seeing-eye dog, then the rule would not be enforceable against that particular member.  If your association attempts to enforce a rule which violates a member’s legally-protected rights, then that member could recover his attorney’s fees from your association because it attempted to enforce the rule against a legally-protected member. 

Adopting and Changing RulesEnacting Emergency Rules.   At times, due to emergency circumstances, it is not possible to give members 30 days’ notice of a new rule or rule change.  Emergency rules can be adopted by the board of directors without 30-days notice if the board of directors determines that an immediate rule change is required to address an imminent threat to public health or safety, or an imminent risk of substantial economic loss to the association.  An emergency rule change is effective for 120 days, unless the rule change provides for a shorter effective period. A rule change adopted as an emergency rule may not be re-adopted as an emergency rule.

Caution should be used when adopting emergency rules.  When emergency rules are necessary the board should document why the rule was adopted as an emergency rule.  The minutes or a board resolution should state why the association needs to adopt the rule immediately.

Mandatory Rules.
Your association is required to adopt certain rules, such as architectural rules (which conform to Civil Code §1378), dispute resolution rules (which conform to Civil Code §§1363.510, et seq.), and an assessment delinquency policy, (which conforms to Civil Code §§1363.04, et seq.).  Legal assistance should be sought to make sure your rules conform to the requirements of the law.  Rules which do not conform to the law may not be enforceable.

Note:
Most of the laws discussed in this newsletter apply only to common interest developments (“CID”).  If your association is not a CID, then the laws discussed herein may not apply to your association.___________________________________________
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