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
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.
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 letter from the HOA that I need to remove the hard floor and replace it with carpet. I wrote them a letter explaining my condition and also provided a letter from my doctor stating that I do have asthma and allergies but I received a letter that the board voted not to grant an exception and I have to replace the floor with carpet otherwise they would enter my home, replace the flooring, and charge me for it. Can they do that? I am looking for your answer and thank you in advance for your time.
Unfortunately, it seems most homeowners do not read the association CC&Rs or rules before they close escrow, only to find out later what is allowed or banned. In wood framed apartment-style (meaning stacked) condominiums, a ban on wood floors is a good idea, since it protects upper and lower neighbors from noise nuisance disputes. However, you have triggered a Fair Housing Act request for accommodation of your disability (your allergies). That does not end the discussion, however, because it may be reasonable for the association to require you to include reasonable sound deadening measures underneath the hard flooring to protect the neighbor underneath you from unreasonable noise nuisance. If you have allergies, it may give you the right to a non-carpeted floor. However, it does not give you carte blanche. An accommodation still must be reasonable, and if the noise level is excessive, that accommodation may ultimately be determined to be unreasonable. Sounds like both you and your board may need to take another look at this.
Thanks for your question,
Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to Kelly@rodllp.com. Past columns at www.HOAHomefront.com. All rights reserved®.