Questioning the legality of proposed Rule change

Started by AmitB1 • 27 replies • 392 views

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AmitB1 (California)
Posts: 1

Posted:

This is a community of 200 SFH on the outskirts of San Francisco Bay Area. All houses have small (~200sq-ft) front yards. When I moved in in 2013, noticed that ALL the houses had altered the front-yards to their liking, with 50%+ residents (including the board members) opting for hardscape, partly in response to state/city encouraging drought-resistant yards.

No one complained, till recently. After recent elections, new board members are proposing an Architectural Guideline and Policy change where one of the guidelines prohibits hardscapes, claiming that they somehow impact home value, without any evidence whatsoever. Frontyards that were converted to mini flower gardens are not targeted, although, IMO, hardscaped yards look far better and cleaner than the majority of gardens that are far more difficult to maintain. If anything, hardscapes should positively impact home values. Worth mentioning that home values in this part of the Bay Area are high due to high quality schools and crime free family friendly neighborhoods.

The Rule is currently in the 30 day comment period. I do not know the law here very well. Can the board can go ahead and unilaterally approve the new Rules even if there's significant opposition? Is there a majority vote, or are the comments for review purposes only? Lastly, say for the sake of argument that there's a majority requirement and the board somehow gains majority. This rule will still financially affect a lot of residents. I feel the rule change in discriminatory in that as it selectively affects members without providing sufficient evidence/justification as to why the rule change is necessary in the first place.

Most residents in the community are busy professionals with little or no time for HOA politics. Most residents are probably not even aware of elections happening! We have had elected board members pursuing policies whose legalities could be questioned before. They had to be discouraged by threatening legal actions. This is the first time though they are attempting the Rule change, which could affect many of us financially. Wondering if we have any legal recourse here.

AmitB1 (California)
Posts: 5

Posted:

I should add though that 10 years ago when residents modified their yards, most, if not all, didn't take HOA's explicit permission. Since HOA never complained, no one actually thought of obtaining approval. The proposed rule mandates that residents retroactively submit those permission applications and they would use that opportunity to propose changes to the landscaping, according to the new proposed guidelines.

KerryL1 (California)
Posts: 14,550

Posted:

Check Davis-Stirling.com, Index, Rules for a heading about rule changes. The 28-day notice that came to owners must have stated the Board is complying with Civl code xxx about proposed rulechanges. Read that civil code section for yourself.

You’ll see that the Board has proposed a rule change. They want owner feedback. They must state the purpose of the proposed change and the f effect (often the same as the [ppurpose). The notice should say this is NOT a vote, but that the Board will take owners’ comments into account when discussing the proposed rule change at the next meeting.

If you believe there is a lot of opposition, contact your neighbors and urge them to attend the meeting. Per Civil code, the Board MUST permit owners’ comments AT the meeting. Some owner should ask if the Board had the HOA’s attorney vet the proposed rule(s)

In particular, that the Board will want to see approvals for front yards that were redone years ago and to make them comply with the new rule may not be legal due to statutes of limitations or other possibilities.

IF the Board Does pass the new rule(s), owners in Ca do have recourse to call a special meeting and vote to overturn the new rule. You might look into that at the site above.

I’m sorry tp say that speculation about the changes’effect on property values isn’t persuasive. As you’ve remarked, prospective buyers are much more interested in the schools than the front yerds.

ElleN (Idaho)
Posts: 4,420

Posted:

Any discussions of this issue should start with a thorough review of California Civil Code 4735. Given the number of ways an owner can wield the latter statute section to object to changing their hardscaping, the board would be foolish to try to prohibit hardscape.

I would advise the board to review Civil Code 4375 and consult the HOA attorney.

ElleN (Idaho)
Posts: 4,420

Posted:

Amit, to review Civil Code 4735, see https://www.davis-stirling.com/HOME/Statutes/Civil-Code-4735

TerriS6 (California)
Posts: 3,284

Posted:

The statute of limitations is 5 years in California to enforce a restriction. First thing is nobody with a "noncompliant" yard older than 5 years when the new restriction takes effect will have to change their yard.

Statute of Limitations – The statute of limitations for a violation of a restriction is five (5) years from the time the association “discovered or, through the exercise of reasonable diligence, should have discovered the violation.” (Code. Civ. Pro § 336(b).) The term “restriction” in this respect does not mean only those restrictions which are recorded in the CC&Rs; it also includes unrecorded restrictions such as architectural standards. (Pacific Hills HOA v. Prun (2008) 81 Cal.App.4th 1557, 1563-1564.)

TerriS6 (California)
Posts: 3,284

Posted:

Members can veto a rule change.

https://findhoalaw.com/veto-of-rule-change-by-members/

TerriS6 (California)
Posts: 3,284

Posted:

As a last resort, many provisions of the Davis-Stirling Act (California Civil Code sections 4000-6150) are enforceable in Small Claims Court.

KerryL1 (California)
Posts: 14,550

Posted:

I think, Amit, that www.davis-stirling.com/HOME/A/Adopting-Amending-HOA-Rules supplies the best overview of this top.

I'll reiterate: at the meeting when the Board'll make a decision about adopting the new rules, make sure an owner, perhaps you?--ask what the HOA attorneys opinion is on the forced change t older front years that th Board wants. There's nothing, btw, to prevent you from contacting your community manager (PM) to ask if the Board consulted with the attorney before crafting the proposed rules. The PM may or may not answer your question.

Terri's post is a little off. Owners cannot "veto" the proposed rules at the next open board meeting. The Board has complete control. Owners can combine quickly and call a special meeting, etc. See Civil code above on that topic

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By KerryL1 on 11/09/2023 10:00 AM
I think, Amit, that www.davis-stirling.com/HOME/A/Adopting-Amending-HOA-Rules supplies the best overview of this top.

I'll reiterate: at the meeting when the Board'll make a decision about adopting the new rules, make sure an owner, perhaps you?--ask what the HOA attorneys opinion is on the forced change t older front years that th Board wants. There's nothing, btw, to prevent you from contacting your community manager (PM) to ask if the Board consulted with the attorney before crafting the proposed rules. The PM may or may not answer your question.

Terri's post is a little off. Owners cannot "veto" the proposed rules at the next open board meeting. The Board has complete control. Owners can combine quickly and call a special meeting, etc. See Civil code above on that topic

Kerry, are you saying the statutes below are wrong? My main point is no matter what rule the board enacts, the statute of limitations to enforce a restriction in CA is 5 yrs.

CIVIL CODE SECTION 4365. REVERSAL OF RULE CHANGE BY MEMBERS.
(a) Members of an association owning 5 percent or more of the separate interests may call a special vote of the members to reverse a rule change.

(b) A special vote of the members may be called by delivering a written request to the association. Not less than 35 days nor more than 90 days after receipt of a proper request, the association shall hold a vote of the members on whether to reverse the rule change, pursuant to Article 4 (commencing with Section 5100) of Chapter 6. The written request may not be delivered more than 30 days after the association gives general notice of the rule change, pursuant to Section 4045.

(c) For the purposes of Section 5225 of this code and Section 8330 of the Corporations Code, collection of signatures to call a special vote under this section is a purpose reasonably related to the interests of the members of the association. A member request to copy or inspect the membership list solely for that purpose may not be denied on the grounds that the purpose is not reasonably related to the member’s interests as a member.

(d) The rule change may be reversed by the affirmative vote of a majority of a quorum of the members, pursuant to Section 4070, or if the declaration or bylaws require a greater percentage, by the affirmative vote of the percentage required.

(e) Unless otherwise provided in the declaration or bylaws, for the purposes of this section, a member may cast one vote per separate interest owned.

(f) A rule change reversed under this section may not be readopted for one year after the date of the vote reversing the rule change. Nothing in this section precludes the board from adopting a different rule on the same subject as the rule change that has been reversed.

(g) As soon as possible after the close of voting, but not more than 15 days after the close of voting, the board shall provide general notice pursuant to Section 4045 of the results of the member vote.

(h) This section does not apply to an emergency rule change made under subdivision (d) of Section 4360.

Previous

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By TerriS6 on 11/09/2023 10:11 AM

Kerry, are you saying the statutes below are wrong? My main point is no matter what rule the board enacts, the statute of limitations to enforce a restriction in CA is 5 yrs.

Yeahbut this restriction is new. In the past, there was nothing to enforce.

Quote:

Posted By n/a on 11/09/2023 12:55 AM

No one complained, till recently. After recent elections, new board members are proposing an Architectural Guideline and Policy change where one of the guidelines prohibits hardscapes, claiming that they somehow impact home value, without any evidence whatsoever.

I agree about owners voting for a rule reversal, along with bringing to the attention of the board the statute section regarding drought yada (as linked by me above).

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By ElleN on 11/09/2023 10:42 AM

Yeahbut this restriction is new. In the past, there was nothing to enforce.

Quote:

I agree about owners voting for a rule reversal, along with bringing to the attention of the board the statute section regarding drought yada (as linked by me above).

The board intends to require retroactive permitting. That means they believe the yards were subject to the no-hardscape rule in the past. They want some who hardscaped their yard 8 years ago, to apply for a permit. Well, it's too late.

The yards were not hardscaped in 2013 then everyone altered their yards as they chose. Whatever architectural rules were in place then, it is now too late to enforce them.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

How is it off? Did I write that a rule could be vetoed at the next meeting? No. I posted the procedure to overturn a rule. For you to state "the board has complete control" is a false statement of fact.

TerriS6 (California)
Posts: 3,284

Posted:

Further to ElleN's citation:

https://www.waterboards.ca.gov/publications_forms/publications/factsheets/docs/prohibitions_hoas_fs.pdf

AmitB1 (California)
Posts: 5

Posted:

Thanks for the responses. It'll take me some time to read through it all. There's a wealth of information here. Very much appreciate.

KerryL1 (California)
Posts: 14,550

Posted:

At the meeting under discussion, when the Board will decide whether or not to approve its proposed rules changes that went out for Owners comments, the Board decision becomes new rules (or they vote to not approve.) At THIS TIME, owners have no "veto" power. I

wrote nothing "false," Teri, If you'd like the respect of readers here, dump your constant accusations that posters are "liars," or are posting falsehoods.

Terri first wrote: "Members can veto a rule change. https://findhoalaw.com/veto-of-rule-change-by-members." But she did not place into an understandable context. For new readers like AmitB, Terri's assertion could easily be interpreted as: Owners can veto a new rule AT the meeting that the Board votes to approve them (or votes not to). They definitely may not. The can, however, do their best during open forum to try to dissuade the Board from approving one or more rule.

Because the open meeting about the proposed rules has not even happened yet, I felt no need to go into detail about future options though I stated at least once: that if owner don't like th new rule or rules, "Owners can combine quickly and call a special meeting, etc. See Civil code above on that topic."

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By KerryL1 on 11/09/2023 2:54 PM
At the meeting under discussion, when the Board will decide whether or not to approve its proposed rules changes that went out for Owners comments, the Board decision becomes new rules (or they vote to not approve.) At THIS TIME, owners have no "veto" power. I

wrote nothing "false," Teri, If you'd like the respect of readers here, dump your constant accusations that posters are "liars," or are posting falsehoods.

Terri first wrote: "Members can veto a rule change. https://findhoalaw.com/veto-of-rule-change-by-members." But she did not place into an understandable context. For new readers like AmitB, Terri's assertion could easily be interpreted as: Owners can veto a new rule AT the meeting that the Board votes to approve them (or votes not to). They definitely may not. The can, however, do their best during open forum to try to dissuade the Board from approving one or more rule.

Because the open meeting about the proposed rules has not even happened yet, I felt no need to go into detail about future options though I stated at least once: that if owner don't like th new rule or rules, "Owners can combine quickly and call a special meeting, etc. See Civil code above on that topic."

Well that is totally dishonest to attribute a statement to me when, in fact, it was only your interpretation. Context? I posted the whole explanation so the reader can read for themselves. And you said the board has complete control, totally false. I'm really surprised, usually you are pretty accurate.

KerryL1 (California)
Posts: 14,550

Posted:

Your first quote was just one line: "Members can veto a rule change. https://findhoalaw.com/veto-of-rule-change-by-members." Your clarification came much later. I will not play this game with you, Terri. It offers to help to the OP.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By KerryL1 on 11/09/2023 5:28 PM
Your first quote was just one line: "Members can veto a rule change. https://findhoalaw.com/veto-of-rule-change-by-members." Your clarification came much later. I will not play this game with you, Terri. It offers to help to the OP.

I directed the OP to a link I thought would help to answer the question. That’s all. Don’t make a mountain out of a mole hill. It makes you look petty.

TerriS6 (California)
Posts: 3,284

Posted:

Kerry, are you mad because I posted one way to beat the board? The board never has complete power.

ElleN (Idaho)
Posts: 4,420

Posted:

TerriS6, the OP has said the board is considering an "Architectural Guideline and Policy change where one of the guidelines prohibits hardscapes." I do not understand how the board can make such a sweeping prohibition in the first place unless the covenants already prohibit hardscaping. If the covenants already prohibit hardscaping, then this is not about a new Architectural policy. Instead it is about starting to enforce a longstanding (but ignored) covenant. In which case I expect you and I agree that the statute of limitations likely kicks in.

I do not know what all is going on. All I know is I am suspicious that either (1) this board hasn't a clue about its obligations; or (2) AmitB1 does not have a grasp on what the covenants say and what the difference is between covenants and board-created rules.

KerryL1 (California)
Posts: 14,550

Posted:

Ah.. Agreement with you two as I wrote waaaay above:" In particular, that the Board will want to see approvals for front yards that were redone years ago and to make them comply with the new rule may not be legal due to statutes of limitations or other possibilities."

AmitB1 (California)
Posts: 5

Posted:

Hi ElleN, I have read the Rules & Regulations book. There's absolutely no mention that hardscape is not permitted. On the contrary, the language could be interpreted to mean that any landscaping is permitted as long as it does not exceed property limits. In fact, our past president's yard is completely covered with just mulch (no lawn). The regulations are of course very clear about the need for submitting proposed design to the Architectural Committee for approval. This is the part I (and all the neighbors that I know) missed. Since everyone had changed their yards, we didn't think of taking explicit approval. This was 8 years ago.

In the recent rule change notice, they are proposing to change Architectural Guidelines and Policy. The goal is to have us submit change applications RETROACTIVELY, and they'll be judged according to the NEW standards they listed in the notice. One of the NEW guidelines is that hardscape can only make up 25% of front yard, which basically means no hardscape permitted. There are other guidelines also, items that seemed designed to suit personal agendas and do not reflect any common concern.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By AmitB1 on 11/09/2023 8:47 PM
Hi ElleN, I have read the Rules & Regulations book. There's absolutely no mention that hardscape is not permitted. On the contrary, the language could be interpreted to mean that any landscaping is permitted as long as it does not exceed property limits. In fact, our past president's yard is completely covered with just mulch (no lawn). The regulations are of course very clear about the need for submitting proposed design to the Architectural Committee for approval. This is the part I (and all the neighbors that I know) missed. Since everyone had changed their yards, we didn't think of taking explicit approval. This was 8 years ago.

Most respectfully, do you understand that there is a huge legal difference between "rules and regulations" and covenants?

I suggest you find a copy of the Declaration of Covenants, Conditions and Restrictions (or similarly titled document) and post here everything it says that restricts or might restrict front yard landscaping.

In addition, the courts want to see Architectural rules and regulations that are (1) consistent with the covenants; (2) written down. Also where the covenants give a board or architectural committee discretion, the courts say that discretion must be exercised reasonably and fairly.

Quote:

Posted By AmitB1 on 11/09/2023 8:47 PM

In the recent rule change notice, they are proposing to change Architectural Guidelines and Policy. The goal is to have us submit change applications RETROACTIVELY, and they'll be judged according to the NEW standards they listed in the notice. One of the NEW guidelines is that hardscape can only make up 25% of front yard, which basically means no hardscape permitted. There are other guidelines also, items that seemed designed to suit personal agendas and do not reflect any common concern.

Yeah, I doubt they are complying with either the covenants or state statutes here.

AmitB1 (California)
Posts: 5

Posted:

Hi ElleN, I did read the CC&R document. There's exactly one small paragraph about Landscaping. In the interest of anonymity, I am not pasting the exact contents. Those 4-5 sentences are not specific at all. Basically says that the landscape needs to be maintained in a condition comparable to other residences in the vicinity, lawns mowed, weeds cut, etc. There's another sentence that says other specific restrictions may be established in the Rules - this is why I was quoting the Rules doc earlier.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By AmitB1 on 11/10/2023 12:30 PM
Hi ElleN, I did read the CC&R document. There's exactly one small paragraph about Landscaping. In the interest of anonymity, I am not pasting the exact contents. Those 4-5 sentences are not specific at all. Basically says that the landscape needs to be maintained in a condition comparable to other residences in the vicinity, lawns mowed, weeds cut, etc. There's another sentence that says other specific restrictions may be established in the Rules - this is why I was quoting the Rules doc earlier.

Your board would have to amend the Declaration before it could enact a rule prohibiting hardscapes. Rules have to be consistent with the Declaration.

AmitB1 (California)
Posts: 5

Posted:

Ack. AGain, appreciate all the responses. Learning a lot!

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By TerriS6 on 11/10/2023 12:34 PM

Your board would have to amend the Declaration before it could enact a rule prohibiting hardscapes. Rules have to be consistent with the Declaration.

This is my opinion as well.

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