Dealing With New Disciplinary Limitations

By Kelly G. Richardson, Esq. CCAL, HOA Homefront Column

Sir: As of now, new owners are given a copy of our HOA rules and sign to acknowledge their receipt. In anticipation of legal fights that will ensue from the several new laws emasculating HOA boards, I am thinking that members should also be required to sign an agreement to abide by the HOA rules. This would better show a breach of contract in court should those rules are ignored by paying a $100 fine. Thoughts? How would that procedure be put in place for new buyers, or perhaps all members after the fact? R.S., Solana Beach.

Dear R.S.: Rules, if properly adopted, do not conflict with law or the other governing documents, and are announced to all members, should bind all HOA owners. I understand why you would want owners to be aware of rules, since frankly homebuyers in HOAs often don’t bother to look at the rules (or CC&Rs) until after they become members and are having a problem. However, Civil Code Section 5975(c) already provides a very powerful incentive for members to avoid violating the governing documents – in actions to enforce the governing documents (including the rules) if the HOA is successful in that action it “shall” be awarded its attorney fees. The problem is that litigation is very expensive and destructive to relationships within the HOA, which is why many HOAs formerly used to try stronger fines to induce compliance – which stronger fines are now prohibited by Civil Code Section 5850 (except regarding health and safety rules violations). Under the new restrictions imposed as of July 1, 2025, HOAs now have fewer options to induce compliance and consequently may increasingly need to rely on court action to stop unneighborly behavior. Best regards, Kelly

Dear Mr. Richardson: Our board has decided that in response to AB130, that ALL violations shall be considered "Safety and Health" violations. Plus, if you violate say, a conduct rule, that they will have you charged multiple times. One homeowner was charged dozens of times for a single continuing violation. He faced a $100 fine imposed many times on a single continuing violation for a large total. Is this legal? B.G, Palm Desert.

Dear B.G.: Your board may want to consult with its legal counsel. Civil Code Section 5850(d)(2) requires that before imposing a penalty over $100 for a violation of health and safety rules, the board must in an open board meeting specify the adverse health or safety impact upon the common area or another member’s property. A blanket label on all rules as “health and safety related” would violate the spirit of the statute. A board invoking a blanket adoption of all rules as “health and safety rules” could expose the HOA to potential embarrassment in court if a judge finds the fine was excessive because the violation did not truly involve a health and safety concern. A continuing violation unfairly characterized as multiple daily violations also may lack credibility to a court if the fines were disputed. That could expose the HOA not only to embarrassment and a negation of enforcement but could also result in the court ordering the HOA to pay the homeowner’s legal fees. So, short cuts could prove to be very expensive mistakes for HOAs in this area. Sincerely, Kelly