Why Governing Documents Matter

Why Governing Documents Matter

Governing documents are critical for HOA communities and are literally the legal glue which holds the association together. Civil Code Section 4150 defines “governing documents” as articles of incorporation, CC&Rs, bylaws, and operating rules, but I think subdivision maps and condominium plans also should be regarded as governing documents. Each has a distinct purpose and function, and every HOA member should have copies. Subdivision map and condominium plan This document breaks up land into separate pieces of land or airspace sold to homeowners in planned development (“lots”) or condominium (“units”) projects. This document is recorded (i.e. filed) with the County Recorder, is easily retrieved, and defines the “common area” as well as the “separate interest” (i.e., the lot or unit). Sometimes it also delineates exclusive use common areas or maintenance easement areas. It establishes the real estate interests owned, so any amendment requires agreement of 100% of association members and their mortgage holders, and consequently amendment is highly unlikely. Articles of incorporation Articles of Incorporation establish the legal “person” of the association. Filed with the Secretary of State, this document can be retrieved from that office. Older Articles sometimes contain important information about limits on the association or board’s powers. The Articles list the association’s legal name and can be amended by membership vote, although amending is rarely necessary. Check the association’s corporate status at https://businesssearch.sos.ca.gov. CC&Rs The CC&Rs document is recorded (amendments also must be recorded), and therefore is also a public document. Associations often use unrecorded, unofficial copies, but official copies can be retrieved from the County Recorder. CC&Rs are a long contract automatically binding all owners,...
Saving Our Lawns or Saving Our Artificial Turf?

Saving Our Lawns or Saving Our Artificial Turf?

Dear Mr. Richardson, Our board has indicated that they plan to remove all turf from the front yards of our community and replace it with various types of non-turf plants. The vast majority of homeowners oppose such a plan. Can a board make a decision of this nature and magnitude without homeowner approval? Their decision would make a highly significant change to the appearance of our community. Thanks for any guidance you can give, F.G., Oceanside Dear F.G., I assume from your question that the front yards in your community are common areas or under the governing documents are controlled by the association. Many cities have offered turf replacement programs, funded by the Metropolitan Water District. Such information can be found at www.socalwatersmart.com. One of the fundamental roles of the HOA board is to make decisions regarding common areas, and many boards in recent years have pursued rebates and saved water by reducing common area turf. However, there is a difference between having the legal power to act and the discretion in using that power. Sometimes “can we?” should also be accompanied by “should we?” If the change, even though economically sound, would substantially affect life in the community, it might be something on which the board should seek member input. Straw polls to members, town hall meetings, bulletins, or “FAQ” documents are all options which are not legally required but should be regarded as necessary from the perspective of the association’s community aspects. While HOAs are legal corporations, they are also neighborhoods, and association boards should consider whether some major decisions should be delayed to allow for extra...
Preparing for and Dealing with Disaster

Preparing for and Dealing with Disaster

An unfortunate reality is that occasionally communities can be confronted with disaster, when earthquake, wildfire, or other calamity can transform a community within a few hours. Planning for the unthinkable can improve the association’s recovery prospects. Preparedness: Enhance communication. Embark upon an aggressive campaign to build email contact points for every association resident or owner. The ability to flash bulletins to owners is critical in emergencies and saves labor and postage and increases communication in normal times. Check the association insurance. Does the association have replacement cost or code upgrade coverage? What is covered? Some years ago an association sustained hundreds of thousands of dollars of landscaping and irrigation equipment destroyed in a major brush fire. Fortunately, their policy covered landscaping and the insurance paid to restore common area hillsides. Does the association have earthquake coverage? Check the deductible and inform members of the amount that will be association responsibility in the event of major seismic damage. A meeting with your broker may reveal gaps or inadequacies in the association’s insurance protection. Create emergency policies and plans. The manager should be empowered to respond to emergencies, and each director should know association policy regarding who makes emergency calls to vendors if the manager is not available. Risk management. Is the association adjacent to any hillsides or other brush areas? When was heavy vegetation last cleared from the association perimeter? Your local fire department or a consultant may provide a risk assessment. The Emergency: Immediate Actions. Call first responders. Call management. Issue an update via email and bulletin board, avoiding unsubstantiated reports or anything promoting panic. If evacuation is not...
Where There’s Smoke, There May Be Unhappy Neighbors

Where There’s Smoke, There May Be Unhappy Neighbors

Dear Kelly, My tenants are extremely allergic to smoke – the tenants next door smoke around the clock. I have been working with our board and management, and still the situation has not improved. Our CC&R’s call for “no noxious odors”. I may be losing my tenants. Any suggestions? Thank you, D.M., Costa Mesa Dear Mr. Richardson, I live in a gated community of single family homes on small lots. I’m wondering if there are any restrictions for cigarettes, cigars or pipes. One owner is asthmatic and lives next to a chain smoker that smokes only outside. Another dislikes the smell and must close windows when the neighbor smokes. Thank you in advance, T.G., Simi Valley Hi Kelly, The HOA Board made a rule a few years ago to make our complex a “non-smoking community.” This was done without any information to home owners or requested feedback. I recently learned that smoking is even prohibited inside units! I resent being told what I can or cannot do in my own home. What’s next? All lights out by 11:00? I smoke only in my living room and use a large air cleaner, with all windows closed. Regardless, my neighbor frequently complains smoke is coming in their unit. There is nothing in the CC&R’s about this. Can a board impose this rule on me? LM., San Diego Dear D.M., T.G, and L.M., Our society is smoking less. Adult tobacco smoking declined by 51% between 1988 and 2016 (California Department of Public Health statistics) and public acceptance of the habit also is clearly declining. Many California cities have various smoking bans in place. Can smoking inside...
Can They Reject My Solar?

Can They Reject My Solar?

Hi Kelly, We purchased a home needing a complete remodel and we took all of the appropriate steps with the Architectural Review Committee (ARC). We submitted additional plans to install solar. Our ARC denied our plans, indicating that they are strongly opposed to solar energy because they feel it takes away from the “tranquility” of the neighborhood. We explained that we have the right to install solar, but they indicated that if we pursue installation of solar panels our application for other remodeling will never be approved. Several other homes in the community already have solar. The board said they are opposed to any solar in the neighborhood and that our other remodeling could not be approved unless we agree to waive our legal rights to pursue solar for at least four years. They said they don’t mind litigating with community members who don’t do what they say and gave us several examples of lengthy litigation efforts with individuals in the neighborhood. Have you seen these issues before with HOA battles over solar? Sincerely, J.B., San Juan Capistrano Dear J.B., Your board and ARC are completely wrong, and if they keep daring people to sue, someone is going to take them up on the challenge. Your board and ARC need move past the 80’s or they are going to be spending a lot of time in courtrooms in the 2010’s! The Civil Code contains very strong legal preference and protection for homeowners who wish to install solar systems. Civil Code 714 protects the right of homeowners to install systems on their property, by declaring that CC&Rs, rules or other...