Some of the most frustrating experiences for members of community associations involve homeowners who feel that the rules enforced by their homeowners’ association are unfair or unreasonable. The emotions involved can range from quiet but constant annoyance to open challenge. Nothing across this spectrum of emotions is healthy, for either the individual or the community. Unlike dealing with government, your ability to bring about change in your community is relatively easy, assuming of course that the majority of the membership agrees with you. (If you are clearly in the minority, making change becomes virtually impossible and will be explained later.)
Rules emanate from two sources: restrictions that are set forth in the development’s recorded Declaration of Covenants, Conditions and Restrictions (CC&R’s); and rules adopted by the Board under the authority given them by the governing documents and in some cases the Civil Code. The source of the authority for the rule directly impacts the method of changing that rule or restriction. Restrictions in the CC&Rs typically can only be changed by a vote of the membership in a legally constituted election, while rules made by the Board can be changed by the Board.
Changing the CC&Rs
The CC&Rs can be changed by a vote of the membership. Typically, that vote requires 51% of the membership to approve the change, although this can vary by association. (Note that this is a different requirement than that needed when electing Directors. In this example you need 51% of the entire membership, not just 51% of a quorum, to approve the proposed change.)
The vote on a proposed CC&R amendment can be started by 5% of the membership petitioning the Board for such a vote. It may also be started by the Board on its own deciding to hold such a vote. In any case, once the decision to conduct a vote is reached, the Board should consult the Association’s attorney on the process and related issues. Some restrictions may be a requirement of local, state, or federal government and you may therefore be unable to change them. If the change is approved, an amendment to the CC&Rs must be recorded against all of the separate interests in the development, so future buyers are aware of the change.
While it only takes 5% of the membership to get the process started, clearly those wanting the change should try to determine if there is some popular support for the change. If not, it’s just going to be a money waster for the community.
Rules Made by the Board
Rules made by the Board can be changed by the Board. The Board will typically try to get a feel for the desire of the majority of the community. A Board that is not in tune with the majority of the community is likely to be a Board that is not re-elected, or sometimes even recalled. Before the Board can change the rule, it needs to send the exact wording of the proposed rule to the membership and give the membership 30 days to comment in writing. This comment period is not a vote, and the comments are not binding on the Board. The process is designed to allow the members to provide input to the Board. Once the Board adopts the rule change, the membership needs to be notified in writing within 15 days.
What if I am a minority opinion and I still want the rule change?
This becomes very difficult. While many people can be unhappy, the reality is that associations are like democracies, and are pretty much designed for majority rule, directly or indirectly, on this type of issue. The California Supreme Court has determined that Courts must typically consider association restrictions to be reasonable and fair. In litigation, it becomes the responsibility of the person challenging the rule to prove the rule is unfair and unreasonable. Basically, it is a tough standard if you are in the minority.
Unfortunately, we usually see these challenges when an owner purchased without reading and understanding the rules and restrictions, or somehow feels that the association cannot, or will not, enforce the rule. Those items will be the topic of future articles.
The above article copyrighted by The Helsing Group and reproduced with permission.
This article is provided by The Helsing Group, Inc.