Q: Is my HOA allowed to reserve most of the daily hours for private use in our fitness rooms and saunas without changing the rules?
A: According to Civil Code Section 4340, an “operating rule” is a regulation adopted by the HOA board that pertains to the management, operation, business, or affairs of the HOA. Civil Code Section 4355 requires a two-step 28-day process for rules regarding the use of the common area, as specified in Civil Code Section 4360. Since the policy of usage hours falls under the category of common area amenity policy, it is appropriate for the rulemaking process. However, there are situations where rulemaking on a specific subject may be impractical and unreasonable. For instance, would the HOA go through the rulemaking process to modify the hours of usage for an unlit sports court twice a year during daylight saving time changes?
Even if not explicitly stated in an operating rule, it is crucial for boards to listen to the concerns of homeowners and avoid adopting rules or policies that upset a large number of HOA members. The best way to understand these concerns is through an open forum. Determining whether a rule or policy upsets only a vocal minority or represents a larger group of likeminded members who do not attend board meetings can be challenging for boards.
Q: Can we take action against property owners who violate our CC&Rs by parking their vehicles in driveways?
A: HOA CC&Rs have the highest level of authority within the governing document hierarchy, as stated in Civil Code Section 4205. Since the Nahrstadt v. Lakeside Village ruling in 1994, CC&Rs are presumed to be enforceable unless there is a specific reason they are not.
Parking and garage usage often cause headaches for HOA boards and property managers, as certain parking or garage requirements are not consistently enforced. Additionally, if a majority of the community does not support a particular restriction outlined in the CC&Rs, a vote should be held to remove it through an amendment.
If the CC&Rs are violated, both the HOA and individual homeowners have the right to take legal action to enforce them, as specified in Civil Code Section 5975. However, most homeowners prefer not to pursue legal action due to the associated costs and potential strain on neighborhood relationships. They typically rely on the HOA to handle enforcement. But boards also have the discretion to decide whether to take enforcement action, considering the same factors.
It’s important for homeowners to cooperate and abide by the governing documents, while boards should strive for consistent enforcement or seek amendments to remove undesirable requirements.
Kelly G. Richardson, Esq. is a Partner at Richardson Ober LLP, a California law firm renowned for its expertise in community association law. Questions for the column can be sent to [email protected].
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