WHAT CONTROLS, THE LAW, THE HOA GOVERNING DOCUMENTS, OR WHAT THE BOARD SAYS IS SO?

Laws, cases, governing documents and local ordinances are often inconsistent. One of the common roles of an association attorney is to determine what controls when there is a conflict. Below is a question that relates to this dilemma.

“May HOA requirements supersede State code at any time? I understand that local governments or entities may adopt code that is more restrictive than State, but my issue is that a specific code, at minimum, is not even being met. Here is my concern: When a homeowner in my development (built in 1978) wishes to replace their windows, the HOA states they must replace with a specific type and brand. My research determined that the specific type they are requiring (i.e. aluminum) does not meet California State Energy Code requirements. This is all confirmed by speaking with the California Energy Commission in Sacramento, reading the standards and code books, confirming with my local building official, and interviewing various window contractors. When I brought this fact to the Board’s attention, they did not address it or even acknowledge my research/discovery. How can an HOA completely disregard a State code? What action can I take?”

First I will say that I am not aware of a specific law that addresses window frame types and dictates which materials must be used. I am not aware of an energy requirement or mandate related to replacement using aluminum window frames. Energy incentives are usually characterized as discretionary rather than mandatory and often benefits are realized for use of certain products. So I have no basis to verify or challenge that the above stated position on aluminum window frames.

What I can say is that if a board is challenged or advised by an owner or anyone of any authority and is provided fact-based information or evidence that a product or material is not up to code or is no longer acceptable, it is worth investigating, and if relevant, considering a change in policy. There are some situations where replacement with “like” materials is an exception to more modern requirements, especially in the area of energy efficiency. Quite a few years ago the state started cracking down on shake roofs that were a fire danger. It took many associations in the state a long time to give in and allow composite or other roofs designed to look like shakes. Lots of people liked the look of the wood shake roofs and didn’t want to alter the design of the entire project, even though the fire danger was heightened by the presence of the roofs. But today, many have converted in the interest of safety, and many localities have adopted requirements for replacement materials.

Transitioning away from other products such as aluminum windows may be a trend. Since I am not in the building industry I can’t speak to that, but maybe another reader would like to weigh in on the building codes, and the pros and cons of the aluminum window frames.

As to what controls, State laws often clarify which controls, the law or the governing documents. This is true in the Davis Stirling Act in many cases. “Notwithstanding any provisions in the governing documents” means that law controls over the governing documents. “Unless the declaration otherwise states” means the CC&Rs or regulatory recorded Declaration controls over the law if it “provides”. If nothing is said and there is a conflict, one general rule of thumb based on case law is that if the association documents are more specific or restrictive, or they require a higher standard than a local ordinance or a law, the document provisions would control but if the ordinance or law requires a higher or more restrictive standard, it would probably control. It is good to get preventive legal advice in these situations before things have occurred that are hard to “unravel” to meet the proper standard.

 

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