By Michael Chulak The HOA Advisor
AMENDING ASSOCIATION CC&RS Q. Our homeowner association is fairly old. Should we go to the expense of updating our governing documents?
A. If you answer “yes” to one or more of the following questions, you should seriously consider revising your governing documents: 1.) Are your CC&Rs over five years old? If so, the document does not reflect a substantial portion of the legislation specifically enacted by the state legislature to govern the conduct and administration of associations.
It is important to realize that one of the primary purposes of CC&Rs is to provide notice to the members (including new buyers) of their legal rights and obligations. Revised CC&Rs, which reference all of the current code sections, will meet the disclosure obligations of the board and management company. 2.) Does your board find it necessary to regularly obtain legal opinions regarding provisions in the documents either because they are ambiguous or because they do not include recently enacted legislation?
While the need for future legal opinions may not be completely eliminated, well written, up-to-date documents (that are clear, concise and comprehensive) can substantially reduce the need for legal opinions and can save your association far more money, in the long run, than the short term cost of revision. 3) Do your governing documents adequately address possible disasters such as earthquakes and fires?
Until the 1994 Northridge Earthquake, many governing documents did not address this complex issue adequately. For example, after the earthquake, it became obvious that many governing documents required boards to make critical decisions before it was possible for them to become adequately informed on all relevant issues. This often resulted in less than optimum decisions that turned out to be very expensive for the association. 4) Do your governing documents include obsolete references to the developer and the rights of the declarant, which cause confusion?
These obsolete provisions can be eliminated, thus making the documents more concise and clear. 5) Do your governing documents omit important rules (such as parking rules) that, if included, would improve your ability to manage the association?
If your rules are inadequate, comprehensive (and legally enforceable) rules can be included in a revised set of governing documents. Top DISCOURAGING RENTERS Q. Is it possible to amend our CC&Rs so as to discourage renters?
A. Yes. While courts discourage unreasonable provisions to prevent owners from renting their properties, there are a number of ways to do so in a reasonable way. You should contact an attorney whose practice includes this area of law. Not all attorneys have the experience to amend governing documents for common interest developments.
ASSOCIATION SUED BY MEMBER Q. Our management company recently recorded an assessment lien against the property of a delinquent homeowner. Before recording the lien, they carefully read the CC&Rs and then followed the requirements, only to find out afterwards that the CC&Rs were outdated and did not reflect the current law. As a result, we were sued by the delinquent homeowner and forced to pay a large sum of money to settle the case. Can we recover from our management company?
A. I believe you have a good negligence case. Your management company fell below the standard of care by failing to comply with the current legal requirements. The recordation of liens can have serious consequences and should be supervised by an attorney.
The situation you have described clearly illustrates the importance of amending your association’s CC&Rs in order to make certain they reflect current law.
MICHAEL T. CHULAK is the founder of Michael T. Chulak & Associates in Agoura Hills. Send questions to
Originally published in the Santa Monica Daily Press print edition on June 13, 2007. Read the original PDF.