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December 25, 2005
CC&R and Rule Change Requirements - What Are The Differences?
A reader recently asked this question: "How do you go about making a change in the CC&Rs. The board has imposed a no plants around the residences provision in the CC&Rs so we want to get that rule taken off the books allowing us to have house plants on patios." The reader also complained that the Board imposed a quiet time fom 7am to 9pm - a change from the prior time of 7am to 10 pm on weekdays and 7am to 11pm on weekends. The reader opined that no one but the Board wanted the change.
The difference between rules and CC&R amendments is this: Unless the governing documents require owner approval to pass rules and regulations, the Board can do it without taking a vote of the members. An amendment to CC&Rs on the other hand does require owner approval, and the percentage needed to amend the CC&Rs is usually stated in the CC&Rs. If it is not, then Civil Code Section 1355 requires majority approval. Another difference is that rules and regulations are not recorded with the County but CC&R amendments, to be effective, must be recorded with the County (per Civil Code Section 1355).
It is important to note that even though approval for rules and rule changes is not required by California law (unless the documents say approval is required), Civil Code Section 1357.100 and the following statutes set forth a process that requires Boards of Directors to circulate proposed rules and rule changes to the owners in the development at least 30 days before the meeting at which the Board is considering adopting the rules or rule changes. This allows for an owner comment period. There is also a process for owners to petition the Board to require it to take a vote of owners to terminate a rule that is adopted by the Board, and if the petition satisfies the legal requirements, the Board must put the rule or rule change to a vote of the members.
As to the reader, it seems they are unhappy with changes made by the Board. If the Board amended the CC&Rs without getting owner approval, there is a problem. If the Board approved rules without sending them to owners for review before the Board approved them, there may be a problem, unless it occurred before January 1, 2005, the date the requirements for rule circulation came into effect.
Posted by Beth Grimm at December 25, 2005 11:02 PM