Dear Mr. Richardson,
Our board frequently adopts new rules, generally following the required process of providing 30-day notice to homeowners prior to voting at an open board meeting. The new rules are documented only in the board meeting minutes. Consequently, many of these rules have been “lost” throughout the years as homeowners come and go and memories fade. New homeowners moving in have no knowledge of these undocumented rules and naturally they are upset when the board enforces them. So, where should new and/or modified rules be documented?
If the rule change is not published in writing, it is not a rule, per Civil Code 4350(a). Once the board has completed the rule-making process, the final steps are sending notice of adoption of the change and amending the rules document to include the change. If a new owner is not provided a copy of the rule, it might not be enforceable against that owner. Also, per Civil Code 4525(a)(1), all governing documents are to be provided to a member upon request so that they can be given to a prospective buyer. Rules are part of the association governing documents, per Civil Code 4150.
Hoping this is helpful,
I showed our president your article which said Civil 5850 requires associations to have a list of fines and that the list is part of the Annual Policy Statement packet. He said that there is no annual list of fines as we have an Assessment and Collection policy in place, and that the board is not empowered to change it. Our C.C.& R’s on two pages mentions the board might, “make a decision to levy monetary fines.” Are we in compliance?
C.A., San Diego
No, your president is wrong. Per Civil 5850(c), an association may only impose fines to the amount disclosed in the association’s schedule of fines. Until your association can point to a written rule stating the amount(s) of fines, it cannot impose a fine against members. That schedule of fines is required to be sent to members each year in the Annual Policy Statement per Civil Code 5310(a)(8). The assessment collection policy may be changed so long as the change does not violate the various Civil Code requirements regarding assessment collection. Fines are an important way of ensuring neighborly behavior, and your board should follow the rule-making process and adopt a written schedule of fines.
Our board took a decision for our swimming pool without consulting us the homeowners, of limiting guests in the swimming pool. Is this right can the board do this to our families.
Thank you very much,
Boards cannot make a new rule without notifying the members in advance. Civil Code 4360 requires the verbatim rule change be announced to members at least 30 days before the board meeting to vote on the change. If a rule is extremely unpopular, members can under Civil 4365 call for a membership vote to overturn the rule change. Such votes are rare, because most of the time members are not sufficiently concerned to participate, but it is another avenue if a board completely misses the community’s desires.
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®.