Are These Rules or Just Traditions?
Nov 05, 2012
Many Associations have policies regulating activities on a variety of topics, from water damage repair responsibility to pool use. But is it a “rule” recognized by the Davis-Stirling Common Interest Development Act? If not, it is just a tradition, and not a legally binding rule, regardless of what your HOA calls it.
Is it a rule?
Per Civil Code 1357.110, a rule must be:
- Written;
- Within the authority of the board;
- Not inconsistent with the law or the other governing documents;
- Adopted in substantial compliance with the required process, except for pre-2004 rules; and
- Reasonable
The process
It may require 2 or even 3 board meetings to make a rule change. First, the idea of the change has to be converted into drafted language. The board in an open meeting discusses what should be the exact language of the rule. This may take more than one meeting if the rule is complicated or lengthy. Remember, it cannot be discussed via e-mail or otherwise outside of the board meeting. Once the board approves the proposed rule change, it must be sent verbatim to the members, explaining why the change is proposed and announcing a board meeting at least 30 days later when it will be voted upon. (See 1357.130)
The board meeting to vote on the rule change must include a members open forum opportunity to comment upon it. If the rule change is adopted as it was published to the members, a written announcement must be made to the membership no later than 15 days later. However, if the proposed rule change is modified, the process should start over on the modified proposal (as of November 2012 there is no published legal precedent on this, but that is the safe approach).
Emergency rules
If immediate action is necessary to avoid imminent threat to health, safety or to substantial economic loss, the board may pass a temporary, non-renewable emergency rule for up to 120 days.
Rules required by law
There are five topics which the law requires be covered by rules: Elections (1363.03(a)); assessment collection policies (1365(e)); schedule of fines (1363(f)); architectural review policies (1378(a)); and internal dispute resolution policies (1363.820). Does your association have all five covered? Your association may also need or already have additional rules, of course, such as meeting conduct, pool rules, and architectural rules, for example.
“Ten Commandments”?
Rules are too often drafted as commandments, a list of “do’s and don’ts,” but you aren’t bringing down stone tablets from the mountaintop. Rules govern your corporation, but it is also still a neighborhood. Remembering how you hated as a child to hear “because I said so,” include an explanation of the rule’s importance. Nobody likes to be told what to do, but if there is an explanation it is easier to accept. Rather than: “Bicycling is prohibited in the garage”, consider: “As neighbors, we all want to avoid dangerous conditions. Our garage is unsafe for bicycles because cars are moving around, and bicycling there could result in injury, so it is not permitted” — Same rule, but a more palatable expression. Associations rules stated that way represent the community much better.
Also, consider having your lawyer draft (or at least edit) proposed rules or changes … you may need our help at some point to interpret or enforce them!
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®.
