Reader Questions - Amending CC&Rs

c c & rs h o a homefront reader questions Feb 29, 2016

Hello Kelly,

We live in a small condominium complex in Brawley, Ca. Our CC&R’s were last updated 15 years ago. At the time they were considered “boilerplate” but a lot has changed since then. Would it be possible to bring them up to date by the board adopting amendments or rules, or should they be completely rewritten? Our reserve fund is in pretty good shape, but we are getting ready to spend a large portion of it on needed maintenance items and a complete rewrite may be out of the question financially.

Thanks,

K.W., Brawley

Dear K.W.,

If the covenants were updated 15 years ago, hopefully they already are customized to the community’s needs and mostly are still OK. If changes are desired to update the document conform to the many changes in the law since the last update, or there are issues which otherwise were not anticipated during the last update, a member vote will be necessary. The board cannot adopt CC&R amendments (except to remove developer marketing provisions per Civil 4230, delete illegal restrictive covenants per Civil 4225, or update old statute numbers to the current numbers per Civil 4235). Because rules must give way to the CC&Rs under Civil 4205, the board may not adopt rules conflicting with the CC&Rs.

The legal fee expense to update CC&Rs can be daunting for smaller associations because the cost is spread among fewer members. However, the cost to draft many spot amendments can occasionally exceed the cost of hiring a lawyer on a fixed fee for completely new documents.

Thanks,
Kelly

Dear Kelly,

My husband and I recently purchased a new home in an established neighborhood with 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.

Board members have verbally discouraged new homeowners from pursuing CC&R updating or 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 in an HOA community?

Thank you,

C.S., Riverside

Dear C.S.,

The larger the community, the harder it can be to amend CC&Rs and bylaws, because the difficulty is usually not conflict, but apathy. In larger communities, homeowners often feel less responsible to each other, and it can take a great deal of effort to turn out the vote. Because CC&R and bylaw amendments are hard enough to pass, boards should avoid proposing anything which will be controversial among the members.

Many members do not take the time to read the proposed documents, and so do not vote, figuring that this is simply abstaining. However, since the amendment usually requires a specific fraction of the entire membership, the failure to vote is the same as a “no” vote.

Civil Code 4275 allows associations to seek court help to adopt CC&R amendments which are supported by more than 50% of the members. Corporations Code 7515 allows an association to seek court help if the required percentage to amend the bylaws was not met.

However, the best approach is to organize help to get out the vote.

Best regards,
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®.