Changing HOA Documents, Adding Restrictions-What Can You Legally Do?

Adding and Enforcing Restrictions on HOA Properties

The question started out simple, as usual, but expanded, gave me more opportunity to provide some help in the question of adding and enforcing restrictions in an HOA.

Here is the original question posed to me:

Our HOA is a voluntary neighborhood association in Los Angeles and has no CC&Rs. My understanding is that for the HOA to create CC&Rs, 100% of the affected homes would need to approve them, but what is the actual state law that says that?”

You are correct. To add deed restrictions to anyone’s property you need their consent. I cannot point you to a law that says you cannot add restrictions to property without the owner’s consent – there may be something outside HOA-related law but I don’t think so (any reader that can point me to a law that does allow it – a law that is not mentioned here) can have a free Primer from the website www.californiacondoguru.com! Think about it – if it was ok to do it, people all over the state would be adding restrictions to their neighbors’ property by typing something up and heading down to the recorder’s office, especially neighbors they don’t like. (You can’t look at me, you can’t laugh at me, you can’t swear at me …. the list goes on.)

As to HOAs and Condos, there are some laws in the Davis Stirling Act that relate to this topic. Since this HOA has no CC&Rs, these laws won’t work for it, but for others, here goes:

In an HOA that is already in place with CC&Rs, restrictions can be added if approved by the percentage of owners or voting power stated in the CC&Rs because that is where the “consent” comes in. When a person purchases property in a common interest development they are subject to the CC&Rs whether they ever received them or read them, or not. That is, the CC&Rs that were already recorded when they purchased the property. This is based on a concept called “constructive” notice. When people purchase a plot of land or townhome or condo they are expected to check the local county records for recorded restrictions. Like a ticket for speeding, ignorance of the law is no excuse.

Civil Code Section 4260 gives an HOA the ability to amend the Declaration (more commonly known as CC&Rs) if the document itself does not contain any provisions that allow for amendment. It may be amended by the approval of members pursuant to Section 4270.

Civil Code Section 4265 gives an HOA the opportunity to extend the term of term of declaration if it specifies a termination date, but does not contain any provision for extension of the termination date. It may be extended by the approval of members pursuant to Section 4270.

Civil Code 4270 contains the requirements to make any amendment legally binding. Be sure to pay attention to this because sometimes HOAs go through the whole process of amendment and updating and never record the documents after approval. And no, it’s not the attorney’s fault! When I finish a project with an association I send the final documents to the Board/management for voting along with instructions to contact me to assist with signing and recording instructions which gives me the opportunity to help them finish the process which requires getting the amended or restated CC&Rs recorded and the Restated Articles of Incorporation filed with the state. If they do not follow through after voting with these steps, neither of these documents has any legal effect!

Here is what 4270 says:

(a) A declaration may be amended pursuant to the declaration or this act. Except as provided in Section 4225, 4230, 4235, or 4275, an amendment is effective after all of the following requirements have been met:

  • The amendment has been approved by the percentage of members required by the declaration and any other person whose approval is required by the declaration.
  • That fact has been certified in a writing executed and acknowledged by the officer designated in the declaration or by the association for that purpose, or if no one is designated, by the president of the association.
  • The amendment has been recorded in each county in which a portion of the common interest development is located.

(b) If the declaration does not specify the percentage of members who must approve an amendment of the declaration, an amendment may be approved by a majority of all members, pursuant to Section 4065.

Civil Code Section 4275 allows an HOA to seek judicial authorization by filing a petition to lower the CC&R amendment approval percentage to 50%. This helps HOAs that have a high percentage for the approval requirement, sometimes called a “super majority” because it is higher than a majority.

And last but not least, there are a couple of laws that allow a board to record amendments or documents that change the impact of existing CC&Rs without getting owner approval, or automatically lower the approval requirement.

Civil Code Section 4225 allows a Board to record a document deleting unlawful restrictive covenants, meaning those that are discriminatory based on constitutional terms such as ethnicity, gender, age, familial status, and the like. You definitely need some help with this. This law does not relate to situations where someone claims that the board enforcing something against them but not their neighbor. The word “discrimination” is often used as a misnomer for inconsistent treatment, which does not fall under this law.

Civil Code Section 4235 also allows a Board to make some correction to CC&Rs which a Board might find desirable to correct statutory cross references. When the Davis Stirling Act was reorganized in 2014 all of the statute numbers changed and so the legislature provided a relief valve to change existing documents by recording correct cross references. Again, you need experienced legal counsel to help with this as it is easy to screw it up.

Civil Code Section 4230 allows a Board to prepare a document or rerecord CC&Rs that have deleted declarant provisions (those that benefit the developer and confuse things, like weighted voting provisions, etc.)  for this change in governing documents, the approval requirement is lowered to a majority of a quorum.

The reason you need legal help in doing these things is that it is what you don’t know that will get you every time. You need to know what constitutes discrimination, or at what point the declarant provisions can legally be removed, or how far you can go to “amend” provisions that are under outdated code references to do it right.

You can get a lot more on each of these laws and some guidance from THE DAVIS STIRLING IN PLAIN ENGLISH, a book that is available at www.californiacondoguru.com.

 

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2 Responses to Changing HOA Documents, Adding Restrictions-What Can You Legally Do?
  1. James
    May 24, 2017 | 11:06 pm

    I am concerned that the HOA Board where I reside has over-used the executive session modality to consistently shroud their actions in secrecy. Since there is no actual community due to most units being second homes and somewhat frequent turnover, resale, so owners do not actually meet or interact, there is no counter-weight to the regime of secrecy unless it comes from within the five member Board and only those present would know of it. What would be helpful is if the state law had specifically specified and limited what uses may be subject to secret session. I read that 14 states do have such laws but it did not indicate which states and clearly CA is not among them. An example of concern to me after about 10 years as an owner is that there has never been provided even after the fact any information and certainly no proof that costly contracts have been provided on the basis of the open bidding process required by the CC&R’s. Using the court system may be perceived to be a good option for such condo governance issues if one is an attorney but otherwise,
    especially as the homeowners pay the costs for the Board and [or so I read] judges are predisposed to favor HOA Board members as they are elected officials.
    If a new Board can be elected perhaps there is a way to -by submission to homeowner vote -incorporate into the CC&Rs specific topics or issues that may be subject to executive session and no other with perhaps a proviso for some unanticipated situation which might then be sanctioned only if the assoc. attorney puts in writing aa rationale why it must warrant a secret/executive session. So if these reasons for which time has shown executive sessions should be utilized have already been figured out and compiled perhaps some such already composd and compiled document could be utilized to offer for homeowners to vote to incorporate into the CC&Rs, or not as they see fit? If this is a bit off-topic I suspect it is a potential issue that could arise anywhere in CA where condo complexes and such exist.

    • Beth Grimm
      May 25, 2017 | 12:20 am

      Thank you for your comments. The answer is yes some boards do overuse the executive session privilege and decide other matters that are not appropriate for the confidential meetings. As for the rest of what you say, there are some conclusions I do not agree with and too much to answer here. There are things an individual can do to challenge what a board can do, in the vein of accountability. They would be more suited to specific advice because in order for a person to figure out what to do, they need to know what buttons to push to get things to change. I can help with that kind of thing via a consultation and how a consultation works and is arranged is explained on my website at http://www.californiacondoguru.com. It is not that I don’t want to “give away the store” if I had a one size fits all great answer to give. It is that getting what you want, change, is kind of like playing chess with the board. You make a move, and they respond one way or another, and then it is your turn, and ultimately someone gets the advantage by being a better strategist and things may change because of it. But I cannot give a roadmap for every situation because every situation is just enough different that what might work for one does not work for another. If you really know the Davis Stirling Act it helps in forming strategies. THE DAVIS STIRLING ACT IN PLAIN ENGLISH is only $95 on the website and that is a good place to get the scoop on the laws around board meetings and penalties for violations of the open meetings law.