Reader Questions - Board Amending CC&Rs, Forgotten Rules

Dear Kelly,

When I bought my condo some thirty years ago, I signed and accepted the CC&Rs at the close of escrow; these included By-laws and Rules and Regulations. The various boards over the years have amended and brought the Rules up to date and added some for safety reasons. I understand the concept; however, can the Board amend the CC&Rs (with counsel) without a majority of the owners voting?

Thank you for your attention to this matter,

P.G., Orange

Dear P.G.,

With only three exceptions, CC&Rs are amended by a vote of the membership. A board can amend the document without a vote of the members only in three narrow situations: 1) Under Civil Code 4225(b), to remove illegal discriminatory restrictive covenants; 2) Under Civil Code 4230, to remove developer provisions relating to access to the property for marketing or project completion; and 3) Under Civil 4235, to update statutory references to the current statute numbers. These are all open meeting votes.

Boards create or amend rules by board motion, by a very specific required process, described at Civil Code 4360. Specifically, the board must publish the exact language of the proposed rule change at least 30 days before the board meeting to vote on the matter. So, at the first board meeting, the board approves the language of the proposal to be announced to the members. At the second board meeting, the board must have an open forum session on the rule change before it can approve the chage. This open forum is designed to help the board assess if it has correctly considered the community needs. If the board errs in this regard, the members can petition for a member vote under Civil 4365 to overturn the rule change. So, while creating or changing rules is a board vote task, the members have a voice if enough disagree.

Thanks,
Kelly

Dear Mr. Richardson,

I have been on the Board for several years, more than I care to remember. Every Board does things differently. My question is this – years ago the Board wrote some rules and regulations on satellite dish installations; the regulations went out by mail to every homeowner at the time. Years passed and they were “forgotten”. Now out of the blue the current president posted them on the bulletin board. Can they be reinforced?

Thank you in advance for your response,

K.M., Sun Valley

Dear K.M.,

Rules, to be enforceable, must be in writing and published to the members. In your situation, if a rule was not published or given to members in recent years, some might argue the rule does not apply to them.

To resolve this, the board can notify the membership that it will in 30 days or more have a board vote to reaffirm the rules. The rules will need to be published to the members. Once the board has voted to ratify or confirm the old rules, there should be no further argument about the old rules.

Rules, and also bylaws, are not filed with the County Recorder and so technically are not “public”.

Thanks,
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®.