HOA and CC&R's

Our HOA has been around since 1954. The CC&R's expired in 1978. They were not renewed.
Can a HOA exist without a current set of CC&R's? I do not know why they were not renewed or replaced
it was before my time.

Yes they are a valid non profit corp in good standing and they do not own any common land.

I have to ask, why do you believe the covenants expired in 1978?

Typically, they auto renew (not always, but typically).

Yes I do believe so. I have seen the verbage in the documents about the expiration. This association was formed in 1954 and its my understanding that back then it was common to put an expiration date.

It appears such easements may meet the definition of "common area." If so, then the Davis-Stirling HOA/COA/CIC/yada statute applies to this HOA. Read the following and save yourself a few hundred dollars of attorney fees:

https://www.davis-stirling.com/HOME/N/Non-CID-Communities

https://www.davis-stirling.com/HOME/reciprocal-easements-defined

Granted if the covenants have expired, questions arise about the enforceability of any covenant not related to the corporation's obligation to maintain these easements.

DamonG1, if you want to enforce the bylaws, and since the signs are good that your HOA is subject to the California HOA/COA Act (even with terminated covenants), then the California HOA/COA statute requires that the first step is to ask for Internal Dispute Resolution (IDR). I advise starting your reading here: https://www.davis-stirling.com/HOME/I/Internal-Dispute-Resolution . Follow all the links at the davis-stirling.com site. The latter site is an exceptional discussion of the (corporate, HOA and other) statutes that apply to California HOAs/COAs.

If this is overwhelming (and I think it is to 9999 out of 10,000 newbies to this forum) who appear here, then your best recourse is to hire an attorney to help get elections run per statute. The cost will be in the thousands of dollars. You likely will never get this money back.

This is the price of HOA/COA living.

DamonG1, I am going through your latest post point by point. I am proceeding on the assumption that the HOA is subject to

-- Per statute, you have the legal right to inspect (view) the declarations page of the easement insurance. See

https://www.davis-stirling.com/HOME/H/HOA-Records-Subject-to-Inspection and
https://www.davis-stirling.com/HOME/R/Right-to-Inspect-Records and
https://www.davis-stirling.com/HOME/D/Deadlines-for-Records

. The statute requires that you state your "proper purpose" in this request. This is why the HOA responded as it did. Stating a proper purpose is not a big deal. Below I provide an example of a request you can submit.

-- Having access to records is not a trivial matter. Many nonprofit corp records cases go to litigation. On the one hand, the corporations almost always lose. On the other hand, having to lawyer up and waste time on a lawsuit means everyone loses. On the third hand, legislatures have recognized that corporations used to pull a lot of cr-p when it comes to record reviews and have strengthened statutes in favor of owners inspecting records. California has a particularly punitive statute (relative to other states, anyway) when it comes to records requests.

-- Wanting to enforce the bylaws is not at all unusual. The courts recognize you as a "shareholder" of sorts. In this capacity, you have legal rights to enforce the bylaws as contractual terms between yourself, the HOA and the other owners.

-- Regarding the "loss of the CCRs": The bylaws are a legal instrument still in effect, due to the corporation being under either the Davis-Stirling statute; the California Nonprofit Corp statute; or both. By any chance do the bylaws make any reference to the CCRs? If so, then to the extent the bylaws do this, the covenants could be argued to not be expired per se. Similarly, the HOA corporation's Articles of Incorporation may make reference to the covenants. Any such reference by the Articles of Inc may similarly translate to the CCRs still being in effect. I do not know if my theory has been tested in the courts, but it would not surprise me if it had. Even if this theory has not been tested in the courts, and if the Bylaws and/or Articles of Inc do make such a reference, I would not want to go to court and argue that the CCRs are 100% expired. I would not like my chances.

-- Keep reading at this forum, and you will see that a principal complaint of non-director owners is that the board is not complying with either the bylaws, the CCRs, or statutes. Sometimes it helps to know that board abuses are common. Owner abuses are also common, like owners failing to read the CCRs and understanding what their obligations are as owners.

-- Competent HOA/COA attorneys advise again and again that the least painful way of causing change is getting together a like-minded group of owners and running for the board, capturing a majority of the seats. It's still a lot of work. But this is a lot less work, and less time and risk, compared to rolling the dice on litigation. From all I have seen (and this is a lot), these attorneys are correct.

-- Sample letter for records request:

Dear Board of Directors,

Pursuant to the Davis-Stirling Act, the California Corporations Code and the Bylaws, I request an appointment to inspect the Declarations Page of the Easement Insurance policy. My proper purpose is to become familiar with the corporation's operations as these operations pertain to insurance. Pursuant to Civil Code 5210, please set this time within ten business days of receipt of this letter.

Thank you for your assistance,

name
address
phone
email addie

-- Send the letter registered mail, return receipt requested to the manager. If after two weeks you have received no response, report back. If there is no manager, send the letter registered mail yada to the corporation's registered agent. I do not support sending requests directly to directors' home addresses.

-- Note the lack of hyperbole and emotion in the above letter. Why is this? Because doing so keeps focus and people's blood pressures lower. Also because this letter may see the light of a courtroom. The more black-and-white and matter-of-fact the content of the letter is, the better your chances if push comes to shove. You do not come off as hot-headed, so the above is for the archives more than anything.

-- You are welcome.

Thanks for the detailed response. Our private roads consist of a series of easements each of us property owners own one. It is the job of the association to provide for insurance for these easements and I wish to see the declarations page to see what coverage actually is in force.
That would be my reason.

Using the electorate process to remove and replace board members. Under normal circumstances this would be the ideal way I agree.
Here is another blatant violation of the bylaws. These directors and officers are limited to two and one year terms respectively. Its right there in the bylaws. Nevertheless they have been there over a decade and one two decades. No annual meeting, no ability to vote.
We finally did have an annual meeting and election the first in a decade. We were presented with 7 candidates to be voted up or down.
3 were new residents hand picked by the old president to run. By their own admission they have no clue what they are doing. The rest were the same old members. How can you say a certain person or persons are not acceptable when you are asked to vote on the whole group?

I do have the articles of incorp here. Is there something I should be looking for? The document is very brief.
I have the old CC&R's too.
I was considering sending a list of all the bylaws violations to this board.
They insist that we all abide by the bylaws as they claim they do.
would it be unwise to send such a letter?

-- I suggest you change your "proper purpose" to:

The HOA's private roads have easements. Each owner has title to at least one easement. The HOA provides the insurance for the easements. I wish to see the declarations page to see what coverage actually is in force.

I think this is a bit less confrontational.

-- Regarding how elections have been handled (or have not even occurred) in the past, some observations: If if the past no one demanded elections be held, then there is a good argument that the owners acquiesced to this conduct, and a de facto amendment to the bylaws occurred. However an owner can still ask that the HOA start using the bylaws (all of them) again.

-- Regarding repeat terms: Again, the acquiescence argument kicks. "Acquiescence" is a legal argument. There are court cases where a board did xyz for many years, in violation of the bylaws, and no one objected. Courts have said xyz is now a de facto amendment to the bylaws.

-- Regarding being forced to vote up or down on a group of residents running for the board: You will have to parse your bylaws and state law carefully and identify exactly how this violates the law or bylaw. I expect this does violate the bylaws or state law, but I do not want to go looking for this just this instant.

-- Are you aware that California recently amended its HOA statute to place rather rigorous requirements on how elections are run? Did you know the statutes require HOAs to create a set of election rules and publicize these? See https://www.davis-stirling.com/HOME/E/Election-Rules-Required . Do these rules exist at your HOA? If not, then this may be the best starting point. That is, you ask for the election rules, pursuant to statute section ____. If the Board does not produce them, you ask for IDR. And so on.

-- Do the Articles of Incorporation make any reference to plats or covenants?

-- I would run all the bylaw violations by this forum first. You should quote the Bylaws you claim are being violated first.

-- By the way, what do the bylaws give for the procedure to amend the bylaws?

-- I trust you are planning to run for the board. Do other owners feel as you do?

We have no fining schedule.
This is a property owners association their main duty is mantaining the road system. Simple on the face of it. All the property restrictions, and there were many, went by the wayside in 1978 when the CC&R's expired. What I see now I believe to be fiduciary and operational in nature.

AugustinD you mentioned in an earlier post that " California has a particularly punitive statute (relative to other states, anyway) when it comes to records requests."

Do you know the number for that statute Id like to have a look at it.

in such cases where a fine is levied who is responsible for payment? Does it come out of the treasury or from the board members?

In our recent issue with taxation the fine and accounting fees were taken out of our treasury even though it was the fault of one board member. Hence the question.

Damon

For the records and Augustin's achieves, owners do not have to initiate IDR. Associations must, if they are going to pursue litigation. Even if an association offers IDR, an owner has the right to refuse. An owner can skip IDR, go straight to small claims and take their chances. It is a more economical option than Superior Court, unless of course you have $20K to just throw away.

I have read through the old CC&R's looking for reference to bylaws or AOI. Nothing. I did find reference to an "association that may be created"

The bylaws do make reference to CC&R's and the Articles of Incorporation in this form:

under Duties and responsibilities: "To carry out the general purposes for which this corporation is established" (I take "general purpose" to mean the AOI)
"To enforce declarations and restrictions of record relevant to Beautiful Meadows" (our community)

There is mention of surveyor's map book 68, page 22 of records of surveys etc...

I suppose your Board's directors may be hanging their hats on the Bylaw phrases above. And yes, this is even though the CC&Rs might conceivably be deemed no longer "of record." I am not saying they are right. I am saying that, if push came to shove and this landed in court, the Board could argue that (1) the corporate Bylaws are active and so enforceable; (2) the Declaration (even though it is expired) is recorded with the county and so is "of record"; hence (3) the corporation through its board has the right to enforce the Bylaws and so, per the Bylaws, the Declaration and restrictions.

That begs the question why arent they enforcing them? Or rather, they are selectively enforcing the ones they like. Like dues collection.
They dont enforce any of the restrictions nor do they want to. The president and others have said time and again that all they do is fix the roads and bridges.
If what you say is correct then it should go both ways.

-- If you keep reading the posts at this forum, you will see examples of boards that enforce some covenants but not others. Often the covenants even expressly permit this. More below on what the courts say, at least by my reading.

-- I would keep in mind that "selective enforcement" in the courts means enforcing covenant X against, say, neighbor Henshawe but not enforcing this same covenant X against neighbor Warleggan. This would be the board asking for legal trouble.

-- Covenants usually have a statement saying one owner may sue another owner to enforce the covenants.

-- California case law says the Board has an obligation to enforce the covenants. In California, when neighbor Warleggan is violating covenant X and the Board is doing nothing, neighbor Poldark has standing yada to sue both the Board and neighbor Warleggan to enforce the covenant.

-- If your HOA's covenants are technically still in force and you wanted to go through ADR then as needed to court, then in theory you might very well succeed in forcing the Board to start enforcing all the covenants.

-- On the other hand, if (1) a long enough period of time has passed (like ten years, give or take); (2) many neighbors are violating covenant X; and (2) driving around the subdivision gives one the impression that there is no covenant X, then a court may very well say the covenant is abandoned and no longer enforceable.

Such is my introduction to the law here. It reflects much reading of case law and notably, the Restatement (Third) of Property: Servitudes, Common Interest Community section. The latter is a continually updated summary of the case law nationwide. Said case law has yielded certain general rules on which the courts often call.

Bylaws are not required to be recorded in the State of California, but if an association did have them recorded, they would be with your County Recorder, NOT the Secretary of State.

I would be investigating further to see what is going on.
In preparation for a meeting with an attorney, I would be reviewing:

-- your lot/house's deed and the neighborhood's plats. You want to look for language concerning your lot being subject to covenants or a declaration, typically accompanied by an exact citation of where in the county's records these covenants or declaration are.

-- the bylaws and articles of Incorporation. Do the bylaws or articles of inc say anything about who is a member of the HOA corporation? Or is there anything about removing a lot from the corporation?

-- the (supposedly expired) CC&Rs. What do they say about who is subject to these covenants? Do the CC&Rs say anything about removing a lot (and so a member) from the corporation?

I realize this may lead to a circle of sorts. E.g. the plat might very well say your lot is subject to xyz covenants. Logically, one would proceed to the covenants. But then one would see that, per the covenants, the covenants expired.

And yet the corporation possesses the maintenance responsibility for these easements of which you spoke, and the corporation still exists.

I think one of your questions for the attorney might be:

Is there a way for me to have the maintenance responsibility for the easement (which I own) transferred from the corporation to me? Could a vote of the members (effectively, shareholders say the courts) of the corporation amend the governing documents to transfer this maintenance responsibility to me? I expect there may be practical considerations here as well, having to do with who uses the easement, that argue one way or another.

You are stuck paying an attorney I figure several thousand dollars to ponder this. To say the least, he or she is going to give this a lot more thought and of course, research the case law on covenants, easements, maintenance responsibility et cetera.

No, I do not think this is asking too much. For the "proper purpose" of the records request: research to help understand the history of the HOA?

I hope they do not give you a hard time with these requests. You are a shareholder of the corporation and have every right to look at records of the corporation (with some exceptions).

DamonG1, if I may: Do keep reading threads at this forum. Importantly, reading these threads can keep one grounded in the reality of one's opponent having much more power, starting with boards having an attorney at no cost to them personally (apart from the dues all pay). This is after all you, one guy, against a corporation of not small means.

Retaliation by incompetent HOA board amateurs is common. This retaliation can ruin one's life for weeks to years. The legal system is just not set up to address this unless one has thousands (tens of thousands, and sometimes, hundreds of thousands) to spend on attorneys. For HOAs and COAs, the record for lawsuits is so poor that it's often best to have a thick skin and take the high road.

Related aside: I think many HOA/COA attorneys know full well that the more conflict their actions can cause, the higher their billings will be to the HOA/COA. Seriously, I think a certain well known HOA/COA advocacy group called CAI actually teaches attorneys this at CAI conferences, if only at the bar over drinks with a wink and a smile between attorneys discussing their annual revenue and their HOAs/COAs.

I have no financial stake in this forum. I think I saw a pop-up ad here exactly once.

What do you mean by retaliation? How so and in what form?

Not clear what you mean about ruining my life for years.

Real life examples:

-- COA bills owner for various infrastructure fees that were never before billed an owner before.

-- COA bills owner for writing the COA attorney. Not allowed under the covenants, but fighting inappropriate billings is time intensive. The manager and board know it. They can get away with this harassment.

-- COA bills owner the COA's attorney fees for filing a fair housing complaint, then takes the owner to court to collect these fees. (HUD and, by a great stroke of luck, a nationally known civil rights lawyer stepped in and stopped this obvious, blatantly unlawful retaliation. It was still not easy to stop.)

-- HOA reports owner (with whom HOA has had other disputes) to county for allegedly illegal dumping from owner's yard to long gone wild common area. The county commences prosecution of the owner for a certain state felony.

-- HOA invites HOA attorney to board meeting where HOA attorney savagely attacks a certain owner with lies and falsehoods, all in the name of zealous advocacy for the attorney's client (the HOA) but in reality, of course to harass the owner. The owner's crime? Asking the city about whether the HOA's guest parking complied with city law. The city confirmed the guest parking did not and asked the condo association to correct this. Then the HOA attorney (simultaneously sitting on a certain city committee) got a city department head to write a defamatory (AFAIC) letter about the owner. Said department head left in disgrace a year or so later, for other reasons (or possibly partly because a couple of us wrote the city's ethics officer, pointing out the violations of the city's ethics code?).

-- Owner wins a legal victory against a COA, with a COA attorney ruling in their favor regarding the expense of fixing damage to their plumbing from COA owned tree roots. The manager and one director then insist this same owner is encroaching on common area by 3 square feet (3 ft^2). The owner is queried. The owner says he recalls the ARC approved the encroachment about three years ago. The manager insists there is no such record. The board okays a director double checking the file of the owner. Within minutes, the director finds the paperwork documenting the ARC approved the encroachment. COA attorney advises board to drop it.

-- Owner complains that upstairs neighbor recently installed tile and now it's noisy as all get-out. As a matter of fact, the tile does violate the covenants. On account of other disagreements with the owner, the manager insists the upstairs neighbor can do as he likes and says there is no problem about which the COA can do anything. Weeks later, after a formal complaint is filed, the board goes after the upstairs owner.

-- Board is discussing problems with parking space's being too small in width. Director makes records request to see the contract with the parking lot space-striping vendor. Director asks once a week when she can sit down and review the file. Manager insists he has no time. Eight weeks later, director is finally given the file to inspect.

-- Board and manager refuse to share records with another director with the support of the COA attorney, who makes up a whale of a lie in legalese about why the director cannot see the records. Director hires an attorney, who writes a demand letter light. Board relents. Cost to director: A few thousand dollars.

The tactics typically used by rogue managers and boards:

Delay; lie; defame; harass; bill wherever possible, even if the billing is not lawful. Force the owner to give time and energy to fight xyz, including in some cases forcing the owner to hire an attorney. Because an owner having to lawyer up teaches an owner a lesson almost every time. And there is no getting this money (paid to an attorney) back except in the most extreme, egregious cases of harassment amounting to IIED (look up, please), say.

Let this be clear. The HOA is made up of YOU and your fellow neighbors. You sue the HOA you sue yourself and your neighbors. You call upon an "investigation" to your HOA, your basically reporting yourself and your neighbors potentially risking fines to be paid by everyone. This includes you. If they find a violation it is NOT going to be just the board members most likely as there is insurance involved here. They may have what is called a "corporate shield". It is like reporting a crime while your at the crime scene with the friends who committed the crime. Do you think the police are not going to charge you too?

We had a code violation involving some yard debris. The city was going to fine us $10K if did not clean it up in 20 working days. A neighbor called it in as the debris was dumped on/near their property. Later found out our "President and Lawncare person" were dumping the yard debris there prior to me getting office. That did NOT mean they had to pay the fine even though I think they should have. It meant WE as a HOA had to go in and clean it up. Had to rent a dumpster and get some volunteers to help clean it up over a weekend. No they did not help the Ex-President and Lawncare if your curious. We were lucky to get it cleaned up enough for us NOT to pay a 10K fine or more till it was cleaned up.

This is what may happen if you go down this road as well. Who do you think will be the ones paying?