Reader Questions - President Issuing Rules, Non-Owner President

Dear Kelly,

Hi, I can’t begin to tell you how many of us faithfully read your weekly column in the newspaper.

My question is this – Our association has the CC&Rs and rules. The current president just issued new rules, with no feedback from the individual owners. When I questioned our management company, they said that this was legal. This doesn’t make sense to me because it means that each year that we get a new board, it could be changed. Am I crazy or what?

Thank you,

K.M., Sun Valley

Dear K.M.,

No, you are definitely not crazy. HOA presidents do not have the power to issue rules – that is the board’s power and responsibility. Civil Code 4340(a) defines “operating rule” as “a regulation adopted by the board…” With the exception of emergency rules or rules simply restating what the law already says, operating rules must be presented to the members pursuant to Civil Code 4360, at least 30 days before the board votes to adopt the rule or rule change.

However, because rules are changed by board vote, it is possible that rules could change annually with a new board. That is why more serious or important restrictions on property use within the association should be amended by membership vote into the CC&Rs, for more permanence.

Best to your HOA,
Kelly

Dear Kelly,

So much I enjoy reading your column! Your columns have helped me gain so much knowledge on HOA issues.

My townhouse complex is a small one. One owner has been the president of the HOA for years and he alone has been taking care of everything – pay bills, call for repairs, file tax returns, prepare annual financial statements, etc.

He sold his unit and moved away. Because no one is willing to take over his duties, he has still been doing whatever he was doing. My question is, does the president of a HOA have to be an owner? What should we do now if none of the owners is willing to take this over?

Truly yours,

G.C., La Habra

Dear G. C.,

Amazingly, some HOA bylaws do not require HOA directors to be HOA members. When I help HOAs update their bylaws, that is one of the items I routinely check. It is hard to justify allowing someone who has no financial stake in (or responsibility to) the HOA to make important HOA decisions. In your association’s case, I applaud the former member who is still willing to manage the HOA for free, but that is not fair to him either.

One issue many associations face, particularly small ones, is the need for the help of a professional manager conflicting with the reluctance of the small association to spend money. Not many people are willing to be a free manager of the HOA, and I would guess that this is a factor in your association’s case which is discouraging volunteers.

Hire a credentialed manager, at least to handle the association’s finances and disclosures. A qualified manager will help the association keep up to date on the financial reports and disclosures required under the Davis-Stirling Act. While this will add somewhat to the overall budget, it may be much easier to get volunteer help.

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®.