Reader Questions - Amending CC&Rs

Dear Kelly,

We recently purchased a home in an HOA. The CC&R’s say one thing but so many exceptions have been made to those CC&R’s that we feel they need to be updated as it is very confusing.

HOA directors have discouraged homeowners from pursuing CC&R change saying it would be too difficult as the community always has extremely low voter turnout for elections, let alone getting community support to update CC&R’s.

Do you have any suggestions for our dilemma of how to go about getting CC&Rs updated?

Thank you,

C.S., Riverside

Dear. C.S.,

Many associations need to update their Covenants, Conditions and Restrictions (“CC&Rs”). One reason is that developers of HOA communities provide the new association with CC&Rs which are normally more boilerplate than customized to the needs of the future owners. Another reason is that CC&Rs can become out of date, as decisions by the appellate courts and actions by the Legislature change HOA law each year.

Amending CC&Rs requires a vote of the entire membership, and the original CC&Rs often require a supermajority which is unreasonable – most commonly 67 or 75%. This is the greatest challenge.

If the HOA cannot attain that supermajority, state law allows HOAs to ask a judge for assistance. If the proposed amendments have been approved by more than 50% of the members, a court may under Civil Code 4275 order the amendment to be approved. The petition will involve attorney fees, and for larger associations, serving each member with a copy of the petition can be a significant additional expense. Since the petitions are not commonly seen by judges, further legal work is sometimes necessary to provide assurance to the court by summarizing the amendments and discussing their importance.

Community unity is key. There is no point in embarking upon a CC&R revision project unless volunteers are willing to pursue a campaign to “get out the vote”. Members need to be made to understand that the failure to vote is in fact a “no” vote.

However, in pursuing CC&R amendments, be careful not to go too far. In the 2013 case of Wittenberg v. Beachwalk HOA, an association tried three times to attain more than 50% of the members so the board could pursue a petition under what is now Civil Code 4275. The case is instructive on several issues.

The board had removed a swimming pool without the vote of the members required by the CC&Rs – mistake #1. Some members sued, and the court ordered the board not to remove any more pools without member approval. In response, the board proposed a CC&R amendment, despite the fact that the subject had become controversial. Mistake #2 – avoid controversial amendments. The board aggressively promoted the amendment in repeated mailers and newsletters, but rejected dissenting arguments. Mistake #3 – the HOA, if using “media” (mailers, web site, newsletter), cannot prevent opposing points of view from being included.

On the third try, 80% of members participated and more than 50% of all members voted yes (29% of those voting voted no). The court granted the petition. Then, the appellate court ordered the judge to reconsider the petition and consider the board’s failure to allow opposing views.

Morals of the Wittenberg case: avoid controversial amendments, and be fair with those who disagree.

Thank you for the question,
Kelly

Written by Kelly G. Richardson

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to [email protected]. Past columns at www.hoahomefront.com. All rights reserved®.