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September 27, 2007
What's The Deal About Rules and Rules Violations?
There are always questions coming in about rules and rules violations. Here are a few questions and answers about rules (in California).
Question: "I have a question regarding violation notices. If the board (via the management company) sends a homeowner a violation notice, should they include a copy of the rule that was adopted by the board?"
Answer: It is a good idea to enclose a copy of or state the rule that the Board believes was violated. The California statute that deals with "due process requirements" (Civil Code Section 1363(h) says:
"(h) When the board of directors is going to meet to consider or impose discipline upon a member, the board shall notify the member in writing, by either personal delivery or first-class mail, at least 10 days prior to the meeting. The notification shall contain, at a minimum, the date, time, and place of the meeting, the nature of the alleged violation for which a member may be disciplined, and a statement that the member has a right to attend and may address the board at the meeting. The board of directors of the association shall meet in executive session if requested by the member being disciplined. If the board imposes discipline on a member, the board shall provide the member a written notification of the disciplinary action, by either personal delivery or first-class mail, within 15 days following the action. A disciplinary action shall not be effective unless the board fulfills the requirements of this subdivision."
Question: "Also, should the board send homeowners a copy of all rules and regulations annually?"
Answer: California law has a litany of requirements related to the approval of rules. The statutes are found at Civil Code Section 1357.100 and following. Basically, for most rules or rule changes the Board must circulate proposed rules to the members at least 30 days before the Board is intending to approve the rules, and then again, after they are approved. There is no requirement that the rules be circulated thereafter at all, until changed, but it makes sense to send them out annually. Think about it, the more they are put before the owners, the harder they are to ignore.
Question: "Can you tell me what home owners need to do to start the process of changing a rule within an Association's guidelines? Can a petition be started and are there guidelines that need to be followed for that procedure?"
Answer: Any owner can suggest a rule. Any board member can suggest a rule. If the Board does not move forward with a rule that is requested, then the recourse for the owner might be: seek a list of the member names and addresses and send a survey to owners to see what they think about the proposed rule. Garner interest to the extent possible with supporting documentation or reasoning. If you can get the board or other owners interested in a particular rule, you are more likely to get the process for it moving forward. If you get no support, or if you get more opposition than you expected, maybe you want to re-evaluate the importance of the proposed rule.
An owner could seek signatures of other owners on a petition request to the Board to consider a rule. Under the Corporations Code for an incorporated HOA, an owner can petition the Board for a meeting and request an that the board call a meeting and take some kind of action (so long as the proposed action would be legal and valid - and it is possible that the proposal to adopt a particular rule could be legal and valid), and upon signatures of 5% of the owners in the association, the Board is supposed to call the meeting. However, with the new election rules in California, if the action requested requires homeowner approval (rules usually do not, but it the documents say they do, then they probably do), then the vote would be accomplished via a mail ballot circulated at least 30 days before the meeting, which really screws with the timing of the Corporations Code that allows for the petition process.
And, if the Board proposes a rule or rule to the members, and any member does not like the rule, there are procedures in the statutes (Civil Code Section 1357.100 and following), that allow the owner or owners to press the Board to put the termination of any rule that is approved by the Board to a vote of the members.
Posted by Beth Grimm at September 27, 2007 8:57 PM