CC&R and Bylaws
Questions and Answers

Home Page


Following are Frequently Asked Questions and Answers (FAQ) about amending or restating homeowner association CC&Rs and Bylaws. Please also visit HOA Questions and Answers for additional information about community association law and management and Amend Your CC&Rs - $300.

Continuity of Board Management

Q: Our community association has experienced a large turnover of board members over the last several years. We are concerned about continuity of board management. Do you have any suggestions on how we can maximize continuity of management?
A: Yes. Consider the following:

  • You can amend your governing documents so that board members serve two years and also stagger the terms so that only about one half are elected each year; and
  • You can hire a high quality homeowner association management company that your association can rely upon, long term.
A high quality management company can provide continuity of management while encouraging homeowners to stay on the board because the management company makes their jobs easier and more rewarding.

Term Limits

Q: Our HOA has several board members who have been on the board for well over ten years. Our association is not well maintained, and consequently, we need some changes. What can we do to encourage some of the long term board members to give others an opportunity? They complain that they don't want to be on the board and then aggressively solicit proxies in order to get re-elected.
A: Consider reasonable term limits for board members. Some associations amend their governing documents to permit only two consecutive terms. This is more practical for larger associations than small associations.

Disqualification of Board Members

Q: Can we amend our governing documents to prohibit an owner who is delinquent on his monthly assessments from running for the board?
A: Absolutely. You can also prohibit convicted felons from running for the board as well as owners who are in litigation with the association.

Paint Color Restrictions

Q: We have had owners within our association paint their homes some rather unusual and unattractive colors. Can we amend our CC&Rs to require owners to select from a list of approved paint colors?
A: Yes. Many associations do this in order to maintain an attractive appearance.

Smoking in Common Areas

Q: Is it legally permissible for an association to prohibit smoking in common areas?
A: Yes. Homeowner associations are commonly amending their CC&Rs to prohibit smoking in common areas. Many are also prohibiting smoking in balconies and in patio areas.

Limiting Water Use

Q: Our association water bills have dramatically increased over the least few years. Can our community association amend our CC&RS to prohibit the washing of cars in the common areas?
A: Yes. Your HOA can prohibit members from using the common areas to wash vehicles, boats and trailers. It can also prohibit members from using common area water for such purposes. Since car washes recycle their water, utilizing a car wash saves water and it transfers the cost to the users.

Limits on Contract Terms

Q: Our former board of directors entered into service contracts exceeding two years, notwithstanding the fact that they were all elected to one year terms. The new board is now stuck with some very poor quality service providers. Do you have any suggestions?
A: While it is highly unusual for an HOA board to do this, it does happen. One alternative is to amend your community association's CC&Rs to limit most service contracts so that they can be terminated with a thirty or sixty day notice.

Requiring Professional Management

Q: Is it legally permissible for a community association to require professional management instead of self-management which has resulted in a series of disasters for our HOA?
A: Yes. HOA management has become so complex that it makes absolutely no sense for a board to self-manage. As a homeowner association attorney, I can report that self-managed homeowner associations make many more mistakes than those that are professionally managed. This results in their keeping HOA attorneys working overtime.

Residency Requirement

Q: Would it be legal for our HOA to amend its bylaws to require that board members be restricted to members of the association that reside within the community?
A: Yes. This may be practical for larger associations but may not work for small homeowner associations.

Termite Repairs

Q: Our condominium association calls for the association to treat for termites in the common areas and for homeowners to treat for termites in their units as set forth in the California Civil Code. Can we modify our CC&Rs to require the association to treat for all termites? This seems to be more practical.
A: Yes. Many condominium associations find this to be more practical than dividing the responsibility, and are amending their CC&Rs accordingly.

Mandatory Assessment Collections

Q: Our last two boards have failed to take the necessary action to aggressively collect delinquent assessments from non-paying members of our association. We now face financial disaster and must make some changes in how we operate. Can we legally modify our CC&Rs to require the board to take all legal steps permitted to collect association assessments?
A: Yes. It is critically important for every community association to use all legal means available to collect association assessments.

Candidate Forums

Q: Can we amend our election rules to include a candidate forum for those members running for the board?
A: Absolutely. A candidate forum makes sense for every association, large or small.

Mandatory CC&R Restatements

Q: Our association has not restated its CC&Rs since 1978. Can we amend our CC&Rs to require that they be restated every five years?
A: No. Since the members of every association must approve amendments and restatements, your association cannot require that the CC&Rs be amended or restated. However, you can require that the board submit proposed restated CC&Rs to the membership for their approval every five years.

Minimum Insurance Requirements

Q: Our association common areas were recently damaged by fire. Our, insurance coverage proved to be less than adequate. Can we amend our CC&RS to require minimum insurance coverages?
A: Yes. Modern CC&Rs generally specify minimum insurance coverages. It is important that your CC&Rs adequately address this important issue.

Super Majority Requirement

Q: Is it possible for our HOA to amend our bylaws and CC&Rs to require that a super majority of the board make certain types of decisions?
A: Yes.

Interior Water Damage

Q: Can our condominium association amend its CC&Rs to make every condominium owner responsible for interior damage caused by water intrusion?
A: Yes. However, unit owners may still claim that the association is responsible for such repairs due to negligence.

Mandatory Distribution of Minutes and Financial Reports

Q: Our prior boards have been inconsistent about providing the members of our HOA with minutes and monthly financial reports. Can we amend our CC&Rs to require that the association distribute these important documents each month?
A: Yes.

Insurance Deductible

Q: Our association just lost a case in small claims court over the issue of who is responsible for paying the association's insurance deductible. Can we amend our CC&Rs to address this subject?
A: Yes. It is common for associations and homeowners to argue over who has responsibility for paying the insurance deductible because many CC&Rs don't adequately address this subject.

Assignment of Rents

Q: Our community association has an owner who rented his condominium and is delinquent in paying his assessments. Can we collect his rental income in order to pay the assessments?
A: If your CC&Rs include an assignment of rents you can do this. If your CC&Rs don't include this provision, your board should consider an amendment or restatement.

Discouraging Renters

Q: How can our condominium homeowners association discourage owners from renting their condominium?
A: California, like other states prohibits "unreasonable restraints on alienation". This means that community associations cannot adopt restrictions on sales or leasing that would make it unreasonably difficult for an owner to sell or lease their residence. However, reasonable restraints are legal. Michael T. Chulak & Associates believes the following restraints are reasonable and therefore enforceable. A particular court may or may not agree:
  • CC&Rs can prohibit an owner from leasing their property for one year after purchasing it;

  • CC&Rs can require leases to be at least one year in length in order to minimize turnover;

  • CC&Rs can require tenants to sign leases that require them to comply with the CC&Rs and Rules of the association;

  • CC&Rs can authorize the association to evict tenants that violate the Rules and/or CC&Rs of the association; and

  • CC&Rs can authorize the association to collect and hold a security deposit from owners while they are renting their home to protect against damage.


Pit Bulls

Q: Can we amend out CC&Rs to prohibit pit bulls and other aggressive breeds of dogs?
A: Yes. Your insurance company will love you for it.

Can't Afford Restated or Amended CC&Rs

Q: Our homeowner association is relatively small and can't afford to restate or amend its CC&Rs even though they are obsolete. Do we have any options?
A: Yes. For a substantially reduced fee, we can review your CC&Rs and provide your HOA with a "CC&R Advisory" that can be distributed to the members of your homeowner association and attached to the association's CC&Rs.

The CC&R Advisory is not a restatement or amendment and is not recorded. It does not have to be approved by the membership of your association. The CC&R Advisory is a legal opinion setting forth a summary of the major changes to the law enacted since your CC&Rs were approved and recorded. While not as beneficial as a restatement of your CC&Rs, it provides a valuable service at less than 20% of the cost.

Waiving Fees

Q: What is your opinion about waiving fines imposed on a member of our association on the grounds that he is no longer violating our CC&Rs?
A: I think it's a bad idea. If you waive a fine, others will expect their fines to be waived. The board will then be placing itself in a position where it has to show that it is not discriminating or acting arbitrarily. I don't think your board will want that burden. Violating the CC&Rs should have consequences in the form of fines or suspension of rights. I believe the board can forgive the prior violations but the consequences should remain.

 

Suspension of Rights

Q: After a proper hearing, can the board suspend an owner's right to use the pool and community room for violating the Rules of our condominium association?
A: If the CC&Rs or Rules of your association permit the suspension, the board may do so. If the CC&Rs or Rules do not specifically address a possible suspension, the right to suspend the rights to use the pool and community room will depend on the language of the CC&Rs.




Call us for a no cost consultation.