Confusion Reigns About Updating Docs in HOAs and Condos in 2013

Getting Mixed Messages About Updating HOA and CONDO Docs This Year?

Don’t believe everything you hear.

(Note: Similar blog to that in California Condo and HOA Law blog in case you surf back and forth.)

Owners trying to follow what Boards are doing this year with Restated Documents are commonly left out of the loop. There are preliminary steps that should always be taken to let them in on the big Project and offer them the opportunity to provide input. If your association works with me I encourage (and practically demand) it. I have written other blogs on that particular topic but this one is merely about the confusion that is occurring with regard to restating documents this year, when there is a major change coming with the Davis Stirling Act in 2014. Well. major in the sense of a big move to a new location of the furniture we now have, not a complete redecoration.

HOW TO ANALYZE THE MIXED MESSAGES SURROUNDING UPDATING GOVERNING DOCUMENTS 2013 IN LIGHT OF THE 2014 DS ACT CHANGES. (IN CALIFORNIA)

I keep getting calls and emails from board members seeking out proposals to amend and restate the governing documents “… under the new Davis Stirling Act.” For that reason, I decided to write this blog on the topic.

It seems that people are getting the idea that it is time to write documents to the new location of the Davis Stirling Act when it is not here yet and won’t be until the beginning of next year.

Here’s the scoop under the K.I.S.S. principle (keep it simple, stupid).

On my website you can access last October’s E-Newsletter for more on this topic. I focused on the frenzy that has attached to inundation of information about The New Law – Relocation of the Davis Stirling Act, effective January 1, 2014, the confusion that will result from jumping the gun, and why associations should not wait until 2014 to have their documents rewritten.

Again I will say, it’s not going to be new law, just similar words, relocated, divided into double or triple the statute numbers, and reworded in some instances. There are not major deviations from current law. And relocated law can be easily dealt with in documents written today.

I am getting requests for a proposal to write documents “under the new law”. So let’s talk about what that means.

If it means making reference to the new laws and not current statute numbers, you will be confused. If you are thinking there is a new body of law that will be different, you will be confused (or mislead). It seems to me that many attorneys are jumping the gun, touting documents “under the new law”. Some attorneys just complicate things so they can charge more. Attorneys with legislative history experience are more apt to understand how to write documents that reflect the current statutes but flex with legislative change. I know this because since 1988 I have been actively involved in a group that follows California legislation. With such a background it is relatively easy to see that there are few areas of homeowner association law that commonly get tweaked. Thus, it’s easier to grasp a sense of what detail should go in docs, and what detail should be left to search out in the current statutes. The key is to put just enough information and guidance in the governing documents to help a board, the manager, and members understand the basics, with enough detail and authority to steer them in the right direction for operations, maintenance, annual obligations, rights and restrictions to help with the day to day administration and decisions. Not all the Davis Stirling statutes contain mandates that need to be addressed in the governing documents. Many apply to definitional aspects and the basic structure of CIDs (common interest developments) in general. In writing restated governing documents, one can provide sufficient guidance to help readers understand rights, obligations and mandates, and also direct readers to number references for further detail when needed. This guidance can be woven into the documents themselves. That is what makes them flexible enough to withstand legislative changes as each new year rolls over (and they do go fast, don’t the?). And a 30 page set of CC&Rs written in Plain English and limited to pertinent information is more useful than a 60 page document with superfluous and unnecessarily wordy provisions.

Beware, if a newbie is writing documents and relies on the statutes alone, your documents could easily end up to be 100+ pages, maybe even 200, because the Act will be stretched out over several more pages, purportedly to try and make it simpler. The fact that the Davis Stirling Act is being relocated and carved into multiple codes does not drastically change what needs to go in governing documents today. They can be written in a way that will flex adequately with a simple topical conversion/ cross-reference chart.

I will say yet again, why wait when there will be two ways after January 1, 2014, to automatically and simply update the documents: (1) by circulating a pertinent conversion chart or (2) by going in, changing the numbers, and re-recording and/or circulating the documents. Membership approval will be required for neither.

If you are being told today that you must have documents “written under the new law“, it can be misleading. Documents written with the current and the “to-be-relocated” law in mind and the process to flex into the new references might very well be better characterized as “useful and flexible” governing documents. That is what you should be asking for, now and far into the future.

  • Share/Bookmark
2 Responses to Confusion Reigns About Updating Docs in HOAs and Condos in 2013
  1. Dennis Allison
    January 29, 2013 | 11:21 pm

    In following your advice to consult with an attorney, is it fair to say that if you can not afford apr. $200+ an hour don’t bother taking on your HOA. Even if you have an 8 year rock solid case against Board members who rule over a commumity fearfull to speak out. Please don’t interpret this as abrasive my question is sincere I to share your wish for a “harmonious community”.
    Former Board Member Dennis Allison. thank you

    • Beth Grimm
      February 1, 2013 | 4:50 am

      I am publishing this for the sole purpose of saying that alas, it is true that not everyone can afford an attorney for every battle that they wish to fight. Sometimes it is best to move, or move on.

      But I can say that my 20 years plus experience in preparing publications for directors as well as ownrs and offering homeowner consultations (yes, there is a fee) is that there is usually a way that the owner, if they are willing to participate in the process, can effect change in their homeowners association over a period of time with due diligence, and a willingness to serve, do research, attend meetings, gather informatoon, put together meaningful factual documents that tell a story, and contact fellow owners to get involved. An even handed personality is essential.

      I also see cases where people should not live in an HOA because it is ruining their lives. The fact that they cannot get what they want or make things “right” as they see “right” eats them from the inside out.