Reader Questions - Rules vs. CC&Rs

Hi Kelly,

I’m confused between “rules” and “CC&R’s”. Our board over the years has implemented new rules. What I don’t understand is: How is this different than making changes to the CC&R’s, which requires homeowner approval? For example, the board passed a rule prohibiting play in the street. When I bought my house, there was no prohibition, but now, after my kids started playing in the streets, they prohibit it. I didn’t get to vote on this, and had it been in the CC&R’s when I was contemplating my purchase, I would not have bought in this neighborhood because they obviously were not “children friendly”. Do I have any recourse? Can the board just implement new “rules” whenever they want?

Thanks for your insight,

R.D., Vista

Dear Kelly,

Our HOA is over 50 years old and our CC&R’s were updated about 15 years ago.

My problem is that in the past few years our board started picking and choosing which CC&Rs they will enforce and which they will ignore and passing rules that are in direct conflict with the CC&Rs. If our HOA ever gets taken to court over this kind of matter where a resident questions that validity of the CC&Rs that has been changed without legally doing it the correct way, would our HOA lose?

P.T., Sun City

Dear R.D. and P.T.,

Rules should not contradict your CC&Rs, unless in the rare circumstance something in the CC&Rs is contrary to current law. Under Civil Code 4205, CC&Rs take precedence over rules. CC&Rs are more permanent in nature, since a vote of the homeowners is required to amend that document. For this reason, I caution associations to make sure that before it considers proposing an amendment to the CC&Rs, the board is confident it will receive strong support from the community.

On the other hand, rules (sometimes also called “regulations” or “house rules”) are amended simply by a board vote, after advance notice to the community (see Civil Code 4360 for the procedure). This means that rules can change more frequently. This year’s board might view a rule much differently from last year’s board.

Boards should be careful to listen to the community when amending rules – if the board creates a rule or rule amendment which is controversial, Civil Code 4365 allows 5% of the members to petition for a membership vote to overrule the rule change.

Boards should not pick and choose which CC&R provisions they will enforce. CC&Rs are a contract between all of the members, and the association is the party which primarily carries out that contract.

There are several bases to challenge a rule or CC&R provision, such as if the rule or the CC&R provision was improperly adopted, or if it violates existing law.

Several stories are found in published appellate case reports of associations which reportedly violated their CC&Rs for reasons the board felt were important. Those stories, such as the Marquesa at Monarch Beach HOA (Ekstrom v. Marquesa – failing to enforce tree height limits) or the Churchill Condominium Association (Ritter v. Churchill – failing to correct defect in common area floors between units) often end very unhappily. If a CC&R provision is believed undesirable, present it to the members for amendment – do not ignore it or pass contrary rules.

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®.