Is It a Rule? What’s Allowed and What Isn’t

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

Dear Mr. Richardson: Our HOA board recently changed the rules without notifying owners. Does this invalidate the changes? Thanks! J.G., San Diego

Dear Kelly: In our HOA there is limited parking available. The HOA is now requiring everyone to clean out their garage and park at least one car in it. There is no rule in the rules and regulations stating this. Are they allowed to even make this new rule? L.C., Huntington Beach

 
Dear J.G. and L.C.: Per Civil Code Section 4350(a), an enforceable “operating rule” must be in writing. Rules cannot conflict with the HOA’s articles of incorporation, CC&Rs or bylaws, per Section 4350(c). Also, the rule change process must substantially comply with the procedural requirements of Civil Code 4360. Some HOAs have “rules” which are simply board pronouncements – those are not enforceable but at most policy statements.

The verbatim content of a proposed rule or rule change must be first announced to the membership in verbatim form, along with an explanation of its purpose, at least 28 calendar days before the board considers it. Then, at the open board meeting to vote on the change attending members must have the chance to comment. I don’t think failing to announce and then vote upon a proposed change in an open board meeting substantially complies with the required procedure.

Civil Code Section 4355(b) lists some exceptions to the process requirement, most notably that the 2-step 28-day process is not required for rule changes required to comply with law or which repeat something already elsewhere in the CC&Rs or bylaws.

Best regards to you and your HOAs, Kelly.

Dear Mr. Richardson: Does our board have the right to temporarily suspend or not enforce a rule(s) that are in our rules & regulations, our CC&Rs, or the master CC&Rs? Our board voted to suspend enforcement of some holiday decoration rules but did not say which holiday rules. Last year families defied all our holiday rules. These suspended rules now contradict our HOA CC&Rs and master CC&Rs, which state there can be no difference from the master CC&Rs unless it is more restrictive. I have found nothing on the right of HOA Boards to suspend HOA rules. Sincerely, J.M., San Diego

Dear J.M.: Association boards have discretion under the Business Judgment Rule to decide not to enforce a rule if the violation does not merit HOA effort or expense, per the 1977 Beehan v. Lido Isle appellate decision, or to reasonably interpret their governing documents, per the 2018 opinion in Eith v. Ketelhut. However, boards cannot simply ignore clear language of their CC&Rs, per the Ekstrom v. Marquesa at Monarch Beach ruling from 2008.

Another issue you reference is the master CC&Rs, which means there is an authority superior to the HOA board in this regard – the master association board. An important question is whether the HOA board is exposed to possible action by the master association. 

J.M, I like holiday decorations as much as the next person, so long as they are attractive in appearance. If the HOA wishes to have a seasonal moratorium on decorations, instead of temporarily ignoring their rules, perhaps a more effective approach would be to modify the rule to match the community desires.

Best regards, Kelly.