Reader Questions: Can the Board Enforce That? Why Don’t They?Sep 17, 2023
By Kelly G. Richardson, Esq., CCAL
Dear Kelly: My HOA has made a bulk of the daily hours reserved for private use in our fitness rooms and saunas. Is this legal without a change in rules by the entire HOA? J.S., Alameda
Dear J.S.: An “operating rule” under Civil Code Section 4340 is a board-adopted regulation that applies to the management, operation, business, or affairs of the HOA. Pursuant to Civil Code Section 4355, rules regarding the use of the common area are one of the rules subjects that require the 2-step 28-day process required by Civil Code Section 4360. The policy of the usage hours would seem to be a common area amenity policy, and therefore appropriate for the rulemaking process. However, at some point, things can become so minor that rulemaking on a subject might be impractical and even unreasonable. For example, would the HOA pursue a rulemaking process to modify an unlit sports court hours of usage twice each year when the clocks are adjusted?
Whether embodied in a formal operating rule or not, boards should listen to their neighbor homeowners and avoid adopting rules or policies that upset too many HOA members. Open forum presents the best opportunity to learn. It is not an easy task for boards to determine whether a rule or policy upsets just ten very vocal people, or if those ten vocal members represent other like-minded members who do not attend board meetings. Thanks for your question, Kelly
Dear Mr. Richardson: Our CC&R's specifically state that vehicles must be garaged at all times.... However, we transitioned to a new property management company, and now 50 percent of driveways have vehicles parked on them... Is there any recourse by property owners? M.W., Chowchilla
HOA CC&Rs are at the top of the governing document hierarchy, under Civil Code Section 4205. Since the 1994 landmark California Supreme Court ruling in Nahrstadt v. Lakeside Village, CC&Rs are given deference in terms of their enforceability. Following this ruling, courts must presume CC&Rs are enforceable unless there is a specific reason they are not.
Parking and the use of garages are often present headaches for HOA boards and their managers, as certain parking or garage requirements are not always enforced. Another factor can be that most members oppose enforcing a given requirement and so the board doesn’t push the issue. However, if the majority of the community does not support a certain CC&Rs restriction, then the membership should be asked to vote to remove it through an amendment.
If the CC&Rs are violated, the HOA or any homeowner can take legal action to enforce the CC&Rs under Civil Code Section 5975. Most homeowners would prefer not to pursue such action, due to the cost of hiring a lawyer and the neighborhood acrimony that will result, and so they hope the HOA will handle it and pursue the violation. However, the same considerations apply to boards regarding enforcement, so the law gives boards latitude in deciding whether a given violation requires enforcement action.
By the way, only the HOA can pursue homeowners for enforcement of the operating rules, per Civil Code 5975(b).
Homeowners should cooperate and follow the governing documents, and boards should enforce them consistently – or seek amendments to remove undesirable requirements.