Amending CC&Rs is not easy. Here are some tips to avoid making it harder.
- Check with the members. Amending CC&Rs usually takes a supermajority (i.e., more than simply a majority of the quorum), so a good idea isn’t enough – it still needs widespread support. A great proposed amendment is meaningless if the homeowners will not vote for it.
- Avoid controversial amendments. Be aware of subjects which could be very upsetting to some members. Avoid issues on which a widespread consensus cannot be achieved, such as changing assessment allocations or unpopular use restrictions.
- The board can pass some amendments. Certain amendments can be approved in an open meeting by the board such as amendments deleting developer marketing provisions (Civil Section 4230), removing illegal discriminatory restrictions (Section 4235), or changing the old Civil Code references to the current (Section 4235).
- Get out the vote. Many members think abstaining is OK if they don’t have time to read everything, but that hurts the amendment’s chances. Divide the community into sectors and assign each sector to volunteers. Apathy is usually the greatest frustration to amendments.
- Didn’t meet the number? Don’t give up. Civil Code 4275 allows HOAs to file a court petition seeking judicial approval so long as over 50% of all members voted in favor. These petitions really should be viewed as a last resort, due to the legal, mailing, and copying cost involved.
- The EXACT text of the amendment must be sent out with the ballots, per Civil 5115(e) – even if it was already previously distributed. Help members by sending TWO versions – one “redlined” showing what is being removed and what is being added, and another “final” version showing the section as it will read after amendment. If your association is pursuing a complete rewrite of your CC&Rs, a redlined version may not be helpful because the new document may be organized differently. Instead, consider distributing a summary of “highlights” of what will be new or different in the proposed CC&Rs.
- While trying to amend CC&Rs, consider whether bylaw amendments are also needed. More may be accomplished with the same vote (and effort). Bylaw amendments usually require less votes to approve, and if apathy strikes, a court can still order them approved under Corporations Code Section 7515.
- Allow contrary viewpoints to be heard. Normally, boards explain to members why the proposed amendment should be passed. If some members strongly oppose the amendment, the Wittenberg v. Beachwalk case reminds us that a board cannot prevent others from expressing opposition. If there is a significant amount of disagreement, the HOA should slow down and work toward building a consensus.
- Have attorneys prepare proposed amendments. CC&Rs are a legal document. I occasionally learn of clients recording amendments which unknowingly violate the law or contradict another part of the CC&Rs. The association attorney should be involved throughout the amendment process.
- Along with the desired amendment, add an amendment reducing the supermajority. If the HOA is putting in the huge effort to achieve 75% or 67% approval, include an amendment reducing that to 51% so future amendments are more achievable.
- Record the amendment. Once the amendment is filed with the County Recorder it automatically binds all present and future owners.
Good luck with your update!
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®.