Are These Rules Valid?

Are These Rules Valid?

Dear Mr. Richardson, The Davis-Stirling Act requires HOAs to develop certain operating rules, e.g., for elections or dispute resolution. Can (or should) the required rules be incorporated into the bylaws? Our small planned development (no recreational facilities, public streets, etc.) has little need for any rules other than what the Act requires. J.B., Santa Maria Dear J.B., The Davis-Stirling Act requires five sets of rules: Election rules (Civil 5105), internal dispute resolution policies (Civil 5905); architectural application procedures (Civil 4765); a schedule of fines (Civil 5850), and assessment delinquency policies (Civil 5310(a)(7)). Most associations have additional rules meeting their particular needs, such as amenity usage rules, architectural and landscaping standards, parking rules, and meeting rules, for example. Bylaws should not contain rules. Bylaws are meant to be more permanent, since normally a vote of the entire membership is required to amend bylaws. Bylaws should speak to how the corporation is governed – such as corporate powers and limits and board eligibility. Rules are less permanent, since they can be amended by the board with 30 days’ notice to the members. Could your community vote to amend the bylaws and transplant all the rules into the bylaws? Yes, but it’s not a good idea. As time passes, you all may find that some updating of certain rules is necessary and you do not want to have to hold a membership vote each time. Thanks, Kelly Dear Kelly, I bought a condo in Richmond, CA. and without reading the HOA rules I replaced carpet with hardwood because I have asthma and allergies. I love my new home but last month I received a...

Don’t Make Them Guess: Is Your HOA Architectural Application Process Complete?

A fundamental HOA purpose is to preserve the association’s architectural theme, typically protected by rules administered by an architectural committee or the board. If a homeowner wants to change the entry door color, the style of windows, or install a skylight, how does the owner know if the request is worth the effort, and how do they know what is the HOA’s application process? Well-run associations should have reasonable architectural standards and a reasonable application process, all set forth in written HOA rules. Consider some of the following subjects which can be included in those rules. Licensing and insurance If the proposed work requires a licensed contractor, the work should be performed by a licensed contractor who has proof of liability insurance and workers compensation insurance. Permits If the proposed work requires a city building permit, the applicant should provide proof of permits as a condition of approval. Hours of work To protect neighbors, work should not begin too early, or continue into evening hours when adjacent homeowners are beginning to rest. Common area alterations The owner should be required to take all responsibility for approved modifications to common area, so future repair and maintenance of the alteration will be by the owner, not the HOA. The owner should also be required to accept responsibility for future problems created by the common area alteration. One way of securing such promises is to make the permission conditional on the owner signing a written agreement relieving the HOA from such responsibility. I call those “common area alteration agreements,” which are best recorded on the title of the residence, so future owners...
Recipe for Reasonable Rules

Recipe for Reasonable Rules

One important board responsibility is to adopt and enforce community rules. Developers, when creating common interest communities, provide CC&Rs and Bylaws (usually boilerplate), but typically do not create rules. So, it is up to the volunteer boards to create necessary and reasonable rules for their communities. Rules can cover many important topics, such as parking, community room use or architectural and landscaping standards. Rules should be tailored to the needs of each community. However, the Civil Code does require each association to have certain rules. These required rules are: Internal dispute resolution procedures, election rules, delinquency enforcement policies, architectural modification application rules, and a schedule of fines. Rules must be written, per Civil Code 4350(a) From time to time, an association will describe to me “house rules” but cannot point to any place where the particular rule is written. Unwritten rules are traditions, not “rules,” and are unenforceable. Also, rules must be adopted per the process in Civil Code 4360. Keep it simple Draft rules in straightforward language. Rules should be clear and concise. Avoid overly complex rules, because most likely the manager, board and homeowners will not remember all the technicalities in a complicated rule set. Consider starting each rule section with a positive introductory statement Beginning a section of rules with a short explanation about the purpose of the rules makes a more positive statement to the community, and hopefully increases community compliance by the residents. People do not like being told “because I said so”, regardless of age, and explaining the importance of the rules shows respect. Avoid having separate rules for kids Rules cannot single...
Does Your HOA Have the Required Rules?

Does Your HOA Have the Required Rules?

Operating rules are often called “house rules” or “rules and regulations” by associations in California. Under Civil Code 4350(a), rules must be written, and under Civil Code 4340 are adopted by the board of directors. In adopting or changing rules, boards must follow the procedure stated in Civil Code 4360. Most rules are tailored by the board of directors to the needs and desires of a given community, and may address parking, meeting procedures, architectural standards, or other topics. However, many associations are not aware that each association, regardless of size, must have five sets of rules prescribed by statute. Election Rules Civil Code 5105 requires associations to have election rules. The statute gives the basic requirements of election rules. These rules would apply not only to board elections, but also to any matter on which a membership vote is required and which requires the 30 day notice and other procedures required by Civil Code 5100(a). These rules must conform to the bylaws, but also can add additional requirements regarding candidate eligibility, per the appellate case of Friars Village v. Hansing from 2013. Internal Dispute Resolution (“IDR”) Policies Civil Code 5905 requires all associations to adopt a fair and reasonable policy to establish an IDR procedure, in which a homeowner may meet with another homeowner or the board to try to work things out short of litigation. If an association fails to create such a policy, Civil Code 5915 sets forth the procedure. Architectural Modification Request Procedures A frequent board and management function is to respond to homeowners who wish to modify their residence or adjacent common area. Civil Code...

What Is HOA, Disciplinary “Due Process”

Hello Mr. Richardson, What is hoa? I just glanced at your article in the newspaper entitled “Peace among HOA neighbors.” You use the word “hoa” often, but do not define it. Best wishes, B.C., Riverside County Dear B.C., The abbreviation “HOA” means “HomeOwners Association”. It is the most commonly used label applied to what the law in our state calls a “Common Interest Development (“CID”). I often use the term “CID” in this column, because that is the accurate legal term. Interestingly, the Davis-Stirling Common Interest Development Act never uses the term “HOA” or “Homeowners Association.” I use it in this column because that is the more commonly used name. It can be troublesome, because there are hundreds if not thousands of common interest developments in California which are not strictly “homeowners” in composition. Industrial, commercial or “mixed use” projects contain non-residential, business uses. Thanks,Kelly Hi Mr. Richardson, I am on the Board for our HOA and have a question about one of your HOA Homefront columns printed in the paper. It indicated that owners do not have a right to know who complained about them. Our property manager has told us just the opposite – that complaints can’t be made anonymously since if it goes to hearing, the owner has a right to “face his accuser.” If complaints can be made anonymously, I’d like to point that out to the Board and management so that our policy on that is changed. Thanks, L.C., Anaheim Hills Dear L.C., There is a common misconception that all the rights of the accused in criminal court also apply to HOA disciplinary hearings....