Reader Questions - Changing and Enforcing Rules

Good Morning,

I am on the board of a community, and have seen many changes in procedures that govern all boards. Are there legal guidelines that we have to follow to change something in our community rules?

If there are five board members and at a meeting only three show up and someone just decided at this meeting to vote to change a rule, and the vote is two to one, is that legally binding? The other two board members were not informed that a decision like this was going to be discussed, and there was no posted agenda. Then after the vote to change the rule, there was no distribution to every owner of said rule change. What if the Board tries to enforce the changed rule?

Thanking you in advance,

G.D., Hawthorne

Dear G. D.,

Civil Code 4360 provides a process for amending HOA operating rules. First, the board in an open meeting (with agenda notice) discusses a change in the rules and decides to consider a particular change. The exact language of that change must then be provided in a “general notice” (see Civil 4045) to members, at least 30 days before the board meeting to vote on it. At that board meeting, the board must have an open forum on the proposed change (Civil 4360(b)). The open forum comments on rule changes are particularly important, because boards can occasionally misread the community’s priorities, and those comments can inform a board that a proposed rule change should be reworked (or abandoned). So long as the process is correctly followed, then, theoretically 2 of the 5 directors could adopt the rule if only 3 showed up at the meeting. If the board approves the change, the association then provides “general notice” of the fact of adoption of the change.

If the rule change is not adopted in substantial compliance with the procedure, it may be found unenforceable under Civil 4350(d).

Thanks,
Kelly

Dear Mr. Richardson,

Our HOA has a board member that ignores our community CC&Rs. The current president and other board members act as though they are powerless to have this individual adhere to the rules. What recourse do we have as members of the association to address this issue?

Thanks in advance for your help!

B.C., Bonsall

Dear B.C.,

All members, particularly directors, should comply with the association rules and covenants. If the board allows one of the directors to violate rules which other homeowners are required to obey, it not only harms the credibility of the board but could jeopardize the enforceability of the rule. Bluntly, a board is not powerless to handle these issues, but sometimes boards are reluctant to be the “bad guy” to one of their own. But, that is what you sign up for when serving on the board – to maintain the property, collect the assessments and reasonably enforce the governing documents.

The board should hold the director as accountable as any other member, and of course, that director should not be allowed to vote on or discuss their non-compliance issue. If the board is unable or unwilling to enforce a particular rule, then perhaps it is not a rule the HOA needs. There is no point in having rules which are not enforced.

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®.