Help with Unreasonable HOA Board / Rules in CA

Hello,

Sorry in advance for the extremely long post. I'm new to the board and would appreciate any insight.

I live in a community of over 500 single family detached homes that were built in the mid - 1990s. The homes range from around 1900 SQ ft to about 2700 sq ft. Lot sizes vary from around 5000 sq ft to around 10k sq ft. Property values in our city and county have increased exponentially over the years. My community's homes are now selling for upwards of 1.6 million. (being in California I'm sure that's not surprising.)

I moved into this community a little less than 5 years ago. Many people in this community are original owners but there have been a slew of younger families moving in (me being one of them).

While the homes in this community are beautiful, the restrictions are not. Our CC&Rs are pretty standard but our ARC guidelines are a whopping ~50 pages and are pedantic to say the least. In speaking with several neighbors in the community I'm finding that the board tends to deny every single arc application and they're very good at bullying homeowners into settling for something they aren't happy with as opposed to allowing them more freedom in their selections. Many just don't even make improvements because they know they will be denied.

Our arc rules impose guidelines that are forcing us to keep our neighborhood looking like its 1999. The board is against anything new and modern and they refuse to allow us to bring our homes into this decade. Many of the guidelines explicitly say things like "because this is what the builder originally intended". None of the builders who built these homes even exist anymore so I'm not sure why they are so stuck on keeping with the original intentions in the first place.

For example, every single wood fence in the community must be painted. Only two streets are allowed to have stained or clear wood fencing because that was the original builder's specifications. Oh, and they can't have knots. Garage doors must be "raised panel" - basically the cookie cutter standard garage door that everyone has. Gates must be either tan or black and pickets must be vertical. Windows must be white-framed. Front entry doors must be raised-panel wood. Severe restrictions on window placement in doors and garages.

We finally got notified of an updated paint palette (it had been a decade since they updated it). I was excited to see the new paint colors and found that they were even more restrictive than before. Previously, the approved colors were about every shade of brown you could think of. The new colors are basically the same. Many people in the neighborhood were hoping for more modern colors - more shades of white for stucco, and more grays/charcoals/blacks for doors and trim. These are the colors that lead to exponentially increasing property values in my city and county.

Now that you have a basic idea of some of the issue... here's where things get complicated. The president of the board has been a board member since the homes were built. He is also on the ARC committee. I believe that he and a couple of others are the reason that homeowners have been blocked from making more modern improvements.

I have a neighbor who submitted an application to modify the exterior of her home in such a way that is similar to the way a couple of other homes have been modified. Her application was denied. Another neighbor submitted an application to expand her home in order to accommodate her disabled mother who lives with her. Application denied. There was no basis for the denial except that they don't fall under the "New ARC guidelines."

What new guidelines, you ask? Well it turns out that the board had just passed a new set of arc guidelines and that we were in the 28 day period for homeowners to submit comments and feedback before they voted to adopt them. Not one single homeowner in this community was aware of this. We were not notified. Without going into too much detail, they later said that they posted the new guidelines at some obscure location on a random bulletin board that is located on a strip of common area grass that they call a park. Many homeowners aren't even aware of this bulletin board.

The basis of those two denials above? The original guidelines allowed people to expand the front walls of their house forward to be in line with the garage doors. The new guidelines will only allow people to expand half that distance. For some people with smaller lots who cannot expand to the side or to the back, this just doesn't make sense.

Since then I've been doing hours and hours of research on davis-stirling and have a fairly basic understanding of the laws in California as they apply to HOAs. The new guidelines that the board is trying to adopt are even more restrictive than before. It honestly seems that the purpose of these revisions is to discourage people further from wanting to make improvements that aren't in line with what our president thinks the community should look like. You can't even rip up a plant in your front yard and replace it without approval.

We got a large group together and canvassed the entire neighborhood and gathered a couple hundred signatures in opposition of these new guidelines. We attended the board meeting and the room was packed. People were really upset and spoke passionately about the issues they've had with the board over the years. The main theme was "denials". Another common theme was landscaping issues which I won't get into here as this is already too long. Long story short, the board agreed to "table" the adoption of the rules and allow for further comments and suggestions. Based on the fact that we got over 30% of the community to petition to oppose these guidelines I'm not even sure if it's legal for them to still pass them even in 30 days. I'm aware we can call a special meeting if they do pass the rules and call for a veto but I'm not sure if it should even get to that point.

I guess my question today is - how can we inspire change? There are at least 2 board members who have been in positions of power for over 20 years and they are holding our community back. Please understand that I am not advocating for a complete disregard for the rules. I understand the importance of keeping the general aesthetics of the community but I also believe that modern colors and features will only increase our property values further - as do all of the neighbors I have spoken with. I know that getting involved in the board is the number one way to do this but my fear is that the president has the board wrapped around his finger and that everything is generally his way or the highway. I think he's so used to getting his way for years and knows what stall tactics to deploy in order to get people to either give up or bend to his will.

The board is not up for re-election until next year. I am definitely planning to get involved next year and know that a couple of my neighbors want to run as well. Prior to all of this we've had a lot of homeowner apathy. Now I'm realizing it's because no one wants to deal with the hassle and they're also worried about retaliation.

Thanks in advance for any advice or suggestions. I haven't yet begun to delve into other issues I'm uncovering because that would take much too long.

I'm also curious to see if it common for such an old community to have such strict guidelines? Thanks in advance for your help, insight, and thoughts.

-- If you are not already doing so, henceforth use this excellent reference site (run by a law firm) early and often:

https://www.davis-stirling.com/

-- Put the word "rules" in the search engine for the site I linked above, and read everything that comes up.

-- Be aware that the first hurdle to pass when attempting to convene a Special Meeting of the Owners (not the Board) is to achieve quorum. If quorum is not achieved, the Meeting cannot proceed.

-- Keep in mind that board-created rules must have a basis in the CCRs. You assert that the board-created rules do this and that. But you never state what the CCRs say on these various topics concerning colors, fences, materials et cetera.

-- One of the big questions is: Is the Board overstepping the authority that the CCRs grant the Board by making rules that are outside the boundaries of the restrictions given in the CCRs? Answering this will require a careful reading of first the CCRs, and then the board-created rules.

-- You will need to get your people together and start a strategy to identify candidates who feel as you do and gather proxies (if used at your HOA).

-- Consider continuing to read this forum to keep learning. Follow threads where a California CID (wink) in particular is being discussed.

-- Assuming you have tried to find answers at the Davis-stirlilng.com site, remember the only dumb question for this forum is an unasked one.

Thank you for your reply. Were you able to get on the board as well and get the guidelines changed?

-- CaliF, in my experience a Board/HOA that does not have detailed ACC guidelines (pursuant to the CCRs) is a Board/HOA that takes a greater risk of being sued vis-a-vis a Board/HOA with little to no guidelines.

-- The case law says that, where the CC&Rs give a HOA Board or ACC discretion, this discretion must be authorized "reasonably." If push comes to shove, what "reasonably" is will depend on the trial court and possibly an appeals court (for assessing and possibly fine tuning the law as it applies to what the trial court did).

-- What part of the last paragraph (starting with "In addition to the provisions...") does not make sense to you?

-- Is there a definition of "community declaration" in your CC&Rs? Normally the "declaration" is short for "the Declaration of Covenants, Conditions and Restrictions," a.k.a. "CC&RS."

-- It's possible other sections of your CC&Rs address more specifics of exteriors of homes. E.g. fence height. Perhaps the last paragraph is just saying, "The ACC/Board can create rules, but they better be consistent with all the other covenants in the CC&Rs."

-- In the Davis-Stirling statute (a.k.a. California Civil Code sections yada to such-and-such). "CID" stands for "Common Interest Development." A CID in California is either a commercial or residential development with common area. Both HOAs and COAs are CIDs to the extent the statute regulates HOAs and COAs. (There may be a minimum number of units for the statute to apply to a COA.)

-- If the 50 pages of restrictions are driving you all crazy for whatever reason, sure, try to change the board. If the Board pushes back and starts going rogue (or is rogue), post back here for how to respond. Your success will depend on how far over to the dark side this Board has gone. (Assuming the Board is on the dark side. It may not be. It's possible your group is on the dark side but now getting up to speed on how to get out of the dark side.)

Sorry - I meant to say that our CC&Rs do not address these specific things but that our ARC guidelines do. Our ARC guidelines are 50ish pages long and those are the ones that are super restrictive.

-- By any chance is there a master HOA while you live in one of the sub HOAs?

-- Undoubtedly there are non-ACC provisions in the CCRs, which apply to all lot owners. E.g. "Thou shall not be a nuisance"; "Thou shall not convert a patio to a living space."; "Thou shall not park on the street but instead, park only on driveways or in the garage"; "Thou shall not raise livestock on one's lot"; and so on.

Posted By CaliF [quoting from the CC&Rs]
"-- In addition to the provisions of this article each owner of a lot within the properties shall be subject to the architectural and landscaping control restrictions and provisions of the community declaration."

Say, CaliF, how about posting the title of "this article." I assume "community declaration" means your CC&Rs. Have they every been amended, by the way?

Do your CC&Rs say that there must be an ARC? Or anything about ARC guidelines (our condo CC&Rs require both, and our CC&Rs give the Guidelines a lot of authority.)

When you read about rules at the excellent site that Augustin recommended, Notice a couple of things. 1. In CA, The notice for 28 days for Owners to comment on proposed rules only has to be a "general notice." It only needs to be posted in a common area place/area that your Assn. designates in the budget letter owners receive every year. The board's posting seems legal, but the board did its best to make it as difficult as possible for owners to read. Sneaky; underhanded, if you ask me. It says, they knew there would be push-back. Our Property management company always sends a proposed rule change out in an email blast along with posting it in our condo mailrooms.

That a bunch of you showed up at an open meeting is really good and, it seems, persuaded the Board to postpone a decision. Make sure you get an equally vocal group to attend the next time it's on the agenda.

2. I don't know this area very well, but at D-S.com you'll see that owners in CA can overturn rules that the Board makes. As I recall, the process didn't seem too difficult.

Otherwise, keep your neighbors interested in making change in your HOA. A bunch of us newer owners--at the time--did and got rid of the old guard at an election. Stay together, have your own meetings about the kinds of changes you all want to see, continue studying your Bylaws and other governing documents. It's crucial to have unified group.

By the way, do your Bylaws says all directors are elected at the same time? Or, that there must be staggered terms? How many must be on your Board?

We have that situation in SC. The SC Horizontal Property Act covers multi story associations. Nothing covers other type units such as single home associations, side by side duplexes/town home associations, etc. Though not totally exact, it can be said that if you have a shared elevator you fall under the Horizontal Property Act.

Hi KerryL1,

Sorry for the late reply - young kids and a full time job. Thanks for your input!!

Regarding your questions:

"Say, CaliF, how about posting the title of "this article." I assume "community declaration" means your CC&Rs. Have they every been amended, by the way?"

-- The specified article is called "Architectural Control" from our CC&Rs. It's listed in a section called "Community Association Architectural Control". Yes, these are amended CC&Rs from 2010.

"Do your CC&Rs say that there must be an ARC? Or anything about ARC guidelines (our condo CC&Rs require both, and our CC&Rs give the Guidelines a lot of authority.)"

-- Here's what the CC&R's say about ARC: "The architectural committee shall consist of not less than three members as shall be determined by the board. The board has the right to appoint the members of the architectural committee. Architectural committee members shall serve for a term of one year or until their respective successors are appointed or upon the resignation as evidenced by a written notice of resignation delivered to the board. Persons appointed to the architectural committee shall be from the membership of the master association. The architectural committee shall have the right and duty to promulgate reasonable standard against which to examine any request made pursuant to this article, in order to ensure that the proposed plans conform harmoniously to the exterior design an existing materials of the improvements presently existing or planned for the properties. The architectural committee may designate an appoint a representative who is a design professional and a majority of the members of said architectural committee may, from time to time, remove or replace such representative. The designated representative of the architectural committee maybe but not be, a member of the architectural committee."

"By the way, do your Bylaws says all directors are elected at the same time? Or, that there must be staggered terms? How many must be on your Board?"

-- The bylaws state that our board must be 5 members.

-- Regarding Elections, here is what the bylaws say: "At the 2010 annual meeting of the Association, the three (3) candidates
receiving the highest number of votes shall be elected to serve a two (2) year term and the two (2) candidates receiving the
next highest votes shall be elected to serve a one year term. At each annual meeting thereafter, the successor shall be
elected to serve a two year term."

?

Isn't the following the South Carolina HOA statute, applicable to many SC single family home HOAs?

https://www.scstatehouse.gov/code/t27c030.php

Usually, the easiest thing to do is to elect a new board at election time. You say the board is not up for election until next year, but also quoted bylaws where it is clear at least 3 seats should be up this year (unless you JUST had an election this year). Make sure your board is following CA election laws, which require a notification of number of open seats and call for nominations, and a secret ballon, etc. It is surprising that no one has stepped up and taken over for incumbent members, unless the incumbents are doing what the majority of residents want.

If you have majority owner support, you could recall one or more board members. This is not advisable due to the strife it will create, but it could be your best option if you can't wait until elections. It is definitely a better option than a lawsuit.

Others have given better advice about how to overturn rules. You just need to make sure you really have the backing of a good portion of the HOA members - not that you've found a minority that is also annoyed. Sometimes there is a silent majority who generally agrees and is supportive of the board - which is different from apathy. Usually an election gives a good indicator of how supportive people are of the status quo. If it is the case that you and the others are a minority, and you cannot get like minded board members elected to the board or decision overturned by owners.... then a lawsuit asserting the ARC guidelines don't have basis in CC&Rs still might be successful. Lawsuit should be saved as the last resort, though, for obvious reasons.

I have never managed a property that has term limits written into the Bylaws.

As far as elections, very possible that there is no turnover because of the sheer size of the HOA, (500 homes) and trying to achieve quorum, which, in a majority of instances is at least 50%. My association hadn't opened ballots in 8 years until we eliminated quorum, using the personal advise of the author of www.davis-stirling.com.

F.Y.I...Our docs state that no Board member can serve more than two terms. (2 year terms.) After that they must be off the Board for at least one year before serving again. I have mixed feelings on if this is a good thing or not.

I definitely wish ours stated that.

The reason I have mixed feelings is because of our environment. Apathy runs rampant here and getting anyone to even be willing to serve is a major problem. At one point we came very close to not being able to have the minimum required for the Board which is 3. I would bet that the average age here is low to mid 70's and many of these people have already served and no longer have the energy or desire to run again.

The way I read this is that they can continue to serve. Nowhere do I see any wording that limits how long they can be on the Board. With that said, there are some other people here that are better than me at interpreting legal stuff.

Yes it is applicable. Having said that, if you read it, it is a "toothless" bit of legislation mainly enacted on at request of some 1st time home buyers (in the Myrtle Beach area) who say they got burned when Declarants raise their dues. Even then it does not say the Declarant cannot raise dues. It just says 48 hour notice must be given. I know many behind it wanted owners to be able to vote on a dues increase but that did not happen. The best part of it does say an owner must have access to all association records so no arguing there. Personally, overall I consider it as useless as tits on a bull.

Reading the bylaws further I found this section. Does this mean the president can't be president for more than 1 year?:

Section 1. Enumeration of Officers. The officers of the Master Association shall be a
President and Vice-President, who shall at all times be members of the Board of Directors, a Secretary
and a Treasurer, and such other officers as the Board may from time to time by resolution establish.

Section 2. Election of Officers. The election of officers shall take place at the first meeting
of the Board of Directors following each annual meeting of the Members.

Section 3. Term. The officers of the Master Association shall be elected annually by the
Board and each shall hold office for one (1) year unless he shall sooner resign, or shall be removed, or
otherwise be disqualified to serve.

Thank you. So if our directors were just elected/re-elected last summer, then theoretically we should have an election this year for 2 seats based on this below?

At the 2010 annual meeting of the Association, the three (3) candidates
receiving the highest number of votes shall be elected to serve a two (2) year term and the two (2)
candidates receiving the next highest votes shall be elected to serve a one (1) year term. At each annual
meeting thereafter, the successor shall be elected to serve a two (2) year term.

If term limits existed, then I think the probability of an COA/HOA ending up in receivership is higher.

I’d love to read the meeting minutes of the annual meetings. However they’re not posted.

You should request them. Legally they should be keeping them, and legally you should have access to them. Requesting the last 2 years of annual meeting minutes is a relatively low bar that most associations should be able to meet without issue, and should get you the info you want. (You have a right to a lot more minutes/records, but requesting the minimum you need is most likely to be successful in a short timeline.)

Is there a way to find out how many votes each director received in previous elections or is that not legal?

Only once six BOD elections did we have more people running (4) then spots open (3) so only that year did we hold an election as in voting and voted counted.

CaliF

The results of an election MUST be reported to the membership WITHIN 15 days of the election via "general notice".

As provided for in Civil Code §5120(b), the tabulated results of an election must be:

--promptly reported to the board of directors,
--recorded in the minutes of the next meeting of the board,
--made available for review by the membership, and
--within 15 days of the election, reported to the membership via general notice.

Civil Code § 4045. Providing General Delivery or Notice.

(a) If a provision of this act requires “general delivery” or “general notice,” the document shall be provided by one or more of the following methods:

(1) Any method provided for delivery of an individual notice pursuant to Section 4040.
(2) Inclusion in a billing statement, newsletter, or other document that is delivered by one of the methods provided in this section.

(3) Posting the printed document in a prominent location that is accessible to all members, if the location has been designated for the posting of general notices by the association in the annual policy statement, prepared pursuant to Section 5310.

(4) If the association broadcasts television programming for the purpose of distributing information on association business to its members, by inclusion in the programming.
(5) If the association maintains an internet website for the purpose of distributing information on association business to its members, by posting the notice on the association's internet website in a prominent location that is accessible to all members if designated as a location for posting general notices in the annual policy statement prepared pursuant to Section 5310.
(b) Notwithstanding subdivision (a), if a member requests to receive general notices by individual delivery, all general notices to that member, given under this section, shall be delivered pursuant to Section 4040. The option provided in this subdivision shall be described in the annual policy statement prepared pursuant to Section 5310.