Real Estate & Property Law

CC&Rs and Rules Conflict, What Controls?

Lots of people wonder about how to set HOA rules, and others wonder about other rule-related things, like this reader who sent this email:

"I'm sure you can provide clarification for me...Our HOA CC&Rs and Rules and Regulations differ over the same issue. Also, they add items in the Rules and Regulations that aren't even addressed in the CC&Rs."

It's a quandary for the average person who does not understand the legal technicalities, so I will break it down.

The authority to set rules must appear in the documents that regulate the HOA (often called the "governing documents"). Usually this authority appears in the Bylaws. It may have language that limits the authority such as "The Board may adopt rules that govern the common area." Or it may be open ended "The Board may adopt rules."

The documents may say that the Board may propose rules to the owners and the owners must approve them, which would require a homeowner vote. In California, there is a long series of statutes about how to pass rules that does not require a homeowner vote, but does require pre-adoption circulation to members to allow them to comment on the proposed rules. These statutes can be located on the Resource Page through the link to the Davis Stirling Act on my website at http://www.californiacondoguru.com. The Civil Code Section is 1357.100. You can also find the laws at the California state website.

Now, what if they differ? Here is the basic thought process and the answer.

When a question about any rule is brought to me the answer would be found by first determining the extent of the authority for the particular rule. As an example, if the regulating documents (usually it would be in the Declaration aka CC&Rs) say there must be a 10 foot setback from the fenceline for any structure, and the Board has imposed a rule that says there must be a 5 foot or a 20 foot setback from the fenceline, the rule would be unenforceable, because the recorded regulatory document (CC&Rs or Declaration) would control, and they are specific on the subject matter, not open ended. However, if the CC&Rs say that the Board may set standards for architectural control, then adopting a rule (which might also be disguised as an architectural standard) that says there is a 5 foot setback requirement would be a legally valid rule.

So, the answer is, if the authority is there in the regulating documents for setting rules, the language is important. If nonspecific, the Board has more lattitude. If specific, the Board has less lattitude.

There may be other things that come into play here about the validity of any rule, such as common sense. If the Board adopts a rule that says no pets are allowed that do not fit in a carrier for transporting to and from the building and the Board tries to enforce it against someone who is blind and needs a guide dog, well that would be downright insensitive, bone-headed, and illegal too, because of the Fair Housing laws.

You can find out a lot more about rules and enforcement of them in the Primers available on my website (http://www.californiacondoguru.com). I have a set of 4 available that cover the basics, the intermediate stuff, and advanced that deal with issues like parking and towing, and neighbor to neighbor disputes. This is not asking anyone to learn rocket science, and it gets a bit technical, but understanding the basics of rule-setting is one of the most fundamental and important aspects of living in an HOA. Emotions tend to get in the way of good sense so pragmaticism pays off. One would not want to go off "half-cocked" and get aggressive about enforcing a rule that is not enforceable, or challenging the Board publicly on a rule only to find out it is a perfectly legal rule.

Full post as published by California Condo & HOA Law on February 14, 2009 (boomark / email).