(CA) Procedure for amending Architectural Guidelines

According to https://www.davis-stirling.com/HOME/Statutes/Civil-Code-4360 &
https://www.davis-stirling.com/HOME/A/Adopting-Amending-HOA-Rules, Board should send rule change proposal to members
for 28 day comment period, followed by decision to approve at an open meeting. Our board followed this process to approve (drastic) amendments to Architectural Guidelines.

However, we are wondering how the Board came up with the amendments in the first place. There were no open meeting where these were *DISCUSSED, PRIOR TO* sending them out for 28 day comment period.

According to https://findhoalaw.com/open-meeting-act/, decisions have to be taken in open meetings. **But the above mentioned links say nothing about this requirement**

Now, I'll be honest, due to work related travels, I cannot attend the Board meetings. So I rely on meeting minutes that are posted on the HOA website.
What I see is -
Beginning of Oct, there's a meeting notice that says "Board and management to review Architectural Guidelines and Policy"
Meeting minutes has one line - "Motion to send out arch guidelines for member comment period is approved". That's all.
Then new rules get sent out for comment period Oct end. Board approves new rules in an open meeting held Nov end.

There's no meeting minute that discusses the rationale behind the rule changes - how Board/ARC arrived at the decision.

Question - did the Board violate the Open Meeting Act?

As a recently retired longtime board member, I was assigned by the Board in '22 to help our ARC make major changes to our multi-story condo buildings' Arch Guidelines. ARC members & I worked on them and sent the "proposed" changes to the ARC package to the Board for their approval to send them on to Owners for the 28 day COMMENT period. The Board only had a few questions to the ARC members. Such questions and discussions do not go into board meeting minutes, only their decisions. So your Board seems to be OK in this regard in both meetings.

But is the following missing? Civil Code requires that the purpose and result of every proposed change be stated in the notice to Owners. We took changes to be both for additional requirements and proposals and to remove certain silly requirements from the the old document.

Example: Shutters on the front faces of the homes must be made of xxx. Purpose: This product shows far less fading than our previously required xxx. Effect: Less frequent maintenance.

If your Board did not send the purpose & effect for every proposed change, they did not comply with Civ. 4360. Owners also send comments in a space that should be on the notice and boards should pay attention to these comments.. And finally, owners are permitted to verbally express their opinions at the open meeting when the ARC doc change is on the agenda. Again, none of the discussion comments need to appear in the meetings meeting minutes.

Oh, I see that Riley just posted similar about needing the purpose & effect in the 28-day notice to owners.

It's possible, if your Board is secretive and doesn't adhere to statutes, that they discussed the changes in executive session. But I'm not nearly as cynical as Riley. And it's hard to imagine why they'd want to hide such a discussion.

That is why I mentioned executive session

Executive session is for things that are confidential or sensitive in nature. California Law spells out what is appropriate - you can see the items below. Why would discussing changes to a governing document be held in secret, so the homeowners do not have any voice in the matter or don't even know what is going on?

Keep in mind, depending on how large your HOA is and how many pages is in the document - it can be quite expensive to send out the proposed changes without homeowner input.

Why hide in darkness what should be exposed to sunlight?

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?secti4935&lawCode=CIV

> to consider litigation
> matters relating to the formation of contracts with third parties
> member discipline, personnel matters, or to meet with a member, upon the member’s request, regarding the member’s payment of assessments
> member discipline, if requested by the member who is the subject of the discussion.
> payment plan pursuant to Section 5665.
> to decide whether to foreclose on a lien

Great observation, Riley. I did land on that page when surfing the rules, had the exact same question.

Our Board is holding all non-conforming (according to the new rules) yards in violation. They are asking those owners to submit applications for architectural approval. The decision to force the owners to submit applications was done in Executive session. Per the minutes, there were a few Executive sessions where the Board discussed lawyer feedback on the legality of their new proposals. Goes without saying, the decisions themselves are not in the minutes.

That apart, the minutes do not capture anything else regarding how the Board/ARC came up with these new rules.

Here's a little more, Denise. By now you've read the materials on https://www.davis-stirling.com/HOME/A/Adopting-Amending-HOA-Rules. Did your Board send the r required notice that they'd approved the ARC changes to owners as required by statute?

When does your HOA's fiscal year start? AT least 30 days prior, owners must receive a budget & reserves letter which also includes policy statements. A summary of your ARC rules must be in this document.

If enough owners think these rules are unreasonable, see https://www.davis-stirling.com/HOME/A/Adopting-Amending-HOA-Rules. Here you'll read about joint action Owners can take to veto HOA rules in CA.

I still want to see this: "Please tell me the wording in the open meeting minutes that say they voted in ex. sess." I'm not sure I understand: The Board voted in ex sess. to approve the proposed rules? And then place this information in open meeting minutes?? One reason Im baffled is that. apparently the Board s did seek the advice of your hOA's attorney. But it's shocking that the attoeerny wouldn't instruct them to follow the statute and make this vote in an open meeting including Owners' verbal comments as required

(To Riley's remark, the 28-day notice for owner comments on proposed rules changes may be sent electronically by the Assoc. in CA. Owners need to sign a form saying they want many items via email to get many items this way. So our 28-day letters to owners also included an attachment of the complete proposed new ARC doc, which is, indeed, long.Part of th reason is that multi-story buildings have a lot of structural things to look after. "Structural integrity" is a huge art of an ARC's job.)

Discussion among board members about rules and procedures are not allowed in executive session. Such discussions would be subject to up to $500. fine in small claims court.

Any rule must be consistent with your Declaration; otherwise, it is unenforceable.

Terri, Agreed on both.

The Open Meeting Act is enforceable by a civil action. See Civil Code Sec 4955.

A small claims action is a civil action. Courts.ca.gov

"Types of Cases

Trial courts hear many different types of cases. Overall, cases fall under 1 of 2 categories:

Civil cases
"Civil" cases are the cases in which private citizens (or companies) sue each other in court. Civil cases are not about breaking a criminal law.

There are many different kinds of cases in civil court. This website has separate sections for the most common kinds of civil cases. For more detailed information, you can go to our home page and click on the topic that interests you.

There are a lot of different kinds of cases in civil court:

Small claims cases, which are lawsuits between individuals or companies for $10,000 or less, and where no one is allowed to have a lawyer.
General civil cases, usually involving suing someone for money in disputes over things like contracts, damage to property, or someone getting hurt.
Family law cases such as divorce, child support, child custody, and adoptions.
Landlord/tenant cases, where a landlord is trying to evict a tenant from a rental property or a tenant that has moved out is trying to get ore of his or her security deposit back from the landlord.
Probate cases, which are generally about taking care of people and their personal affairs (like wills) and conservatorships for people who cannot take care of themselves or handle their own finances.
Juvenile cases, which involve children under the age of 18 and are separated into 2 main categories: juvenile delinquency (for minors who have broken a criminal law) and juvenile dependency (for children who have been removed from the home or care of their parents).
Other types of cases like name changes, elder abuse, civil harassment, and many others.
Unlike in criminal cases, there is no right to a court-appointed lawyer in most civil cases. This means that, if you cannot afford a lawyer and you cannot get a legal aid or pro bono (volunteer) lawyer, you have to represent yourself. Click if you want more information about being your own lawyer and Representing Yourself.

Some civil cases are decided by judges or by commissioners, like family law, small claims, probate, or juvenile cases. Other civil cases are decided by juries, where it is only necessary that at least 9 of the 12 jurors agree on the verdict."

You continue to miss the section below that is bolded:


We disagree.

If the reader wants to see other legal opinions on this point, consider the following:

Can You Sue an HOA for More Than Just Money in Small Claims? This is a tricky question. In California, you can sue in small claims to recover money. However, you may be able to sue for other forms of relief if there is a statute (a law) that authorizes the small claims court to award other types of relief. See California Code of Civil Procedure (CCP) sec. 116.220(a)(5).

This is important to note because, in California, there is an act called the Davis-Stirling Common Interest Development Act (“Davis-Stirling Act) that outlines the rights and responsibilities of HOAs, governing boards, and individual homeowners in these types of communities.

Under the Davis-Stirling Act, there are certain statutes (laws) that expressly authorize a small claims court to award other types of relief, not just money. For example, under CCP sec. 5235(a), a member of an HOA can bring a small claims lawsuit, to enforce that member’s right to inspect and copy the association records. Under this section, a member can also be awarded up to $500 for denial of each separate written records request.
-- https://www.peopleclerk.com/post/sue-hoa-california-small-claims

Although Small Claims Court is not a typical forum for most homeowner association disputes, it is available when specifically authorized by statute, such as Civil Code section 5658(a).
-- https://www.latimes.com/business/la-fi-associations-20151122-story.html

Small Claims Court. The legislature has given limited authority to small claims courts to grant injunctive relief when it comes to common interest developments. (Underlined emphasis added by me.)
-- https://www.davis-stirling.com/HOME/I/Injunctive-Relief

CODE OF CIVIL PROCEDURE - CCP
PART 2. OF CIVIL ACTIONS [307 - 1062.20] ( Part 2 enacted 1872. )

TITLE 1. OF THE FORM OF CIVIL ACTIONS [307 - 309] ( Title 1 enacted 1872. )

307. There is in this State but one form of civil actions for the enforcement or protection of private rights and the redress or prevention of private wrongs.
(Enacted 1872.)

308. In such action the party complaining is known as the plaintiff, and the adverse party as the defendant.
(Enacted 1872.)

Criminal cases? I posted no such thing.

This is an outstanding illustration of your in-ability to parse simple statements logically.

The fact that you will not address the three citations I gave above says the rest.

A lack of logical skills would lead to this conclusion.

Alternative Dispute Resolution is required before filing a civil action in Superior Court. ADR is not required prior to filing a civil action in small claims court to enforce the Open Meeting Act.

Kerry, I think posters can decide for themselves what is relevant or not without your censorship. Is that the thanks I get for providing you with the Penal Code section your neighbor violated?

That said, Thanks to Terri and Ellen for the discussion. We are all working with limited information here. It's hard to convey everything in writing. It's good to hear all the viewpoints and range of possibilities (unlike our Board, who chose to to ignore all viewpoints except their own)

Oh, sorry Denise, I don't think you can use a statutes of limitation argument to keep something that is now banned by your association. I don't think your failure to get approval based on rues back then matters. Not very helpful, I don't think, but take a look at https://www.davis-stirling.com/HOME/L/Laches-Waiver-Estoppel-Statute-of-Limitations#axzz2svtfytFt

Kerry, maybe you should remind posters that you are not a lawyer and are not qualified to give legal advice about how the five year statute of limitations applies to a particular situation.

If you say the board decided to adopt rule amendments at executive session and not at open board meeting, that would be a violation of the Open Meeting Act subject to civil penalty. Selective enforcement could also be a claim to get your fine returned.

Decision Made at Board Meeting – the board’s decision on whether to adopt or amend an operating rule must be made at a board meeting “after consideration of any comments made by association members.” (Civ. Code § 4360(b).) The proposed rule adoption or amendment must have been listed as an agenda item for that meeting in order for the board to discuss or vote on it at the meeting. (Civ. Code § 4930(a); See also “Board Meeting Agenda Requirements.”)

Did your membership try to veto the rule change per 4365?

Denise said "I wanted to hear your take on the 5 year statute of limitations on enforcement. Say I made the mistake of not obtaining HOA approval when making modifications to my yard 7 years ago, although I did not do anything prohibited. Can the HOA use the new rules to force me to rollback the changes?"

The answer is NO.

I say yes. To be clear, I do not see this claim as frivolous. The latter is important to your financial health.
It appears you are referring to this statute section:

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?secti116.780.&lawCode=CCP

The problem is that your declaration may have a clause requiring any owner who loses a lawsuit to pay the HOA's attorney fees. Does this conflict with the above statute section? I just cannot be sure. A complete, unbiased and objective reading of what this site says is appropriate: https://www.davis-stirling.com/HOME/A/Attorneys-Fees.

Hypothetically: Suppose you win in small claims court. Then the HOA sends a notice of appeal. The instant this happens, then you would have to think long and hard about whether to continue, especially pro se, and especially given the risk of attorney fees being imposed.

Award of attorney fees is a huge subject all by itself, with a staggering amount of case law on the subject (of course).

Suppose you win in small claims court, and the HOA does not appeal. Great!

I will re-phrase this question to the following:

Does small claims court have jurisdiction over a request for a court order to the HOA to not enforce xyz rule or covenant against me?

The answer is no. On the other hand, it is possible that you could go to court to get the money you were fined back, and in the course of the proceeding, you ask for this court order, explaining why you are requesting it.

My point is that, for small claims court to have jurisdiction in this situation, the main claim here has to be non-frivolous (legally speaking) (which IMO your claim is) and concern money that is $5000 or less.

I have in my possession right now an active, valid court order SC-105 issued by small claims court against my HOA ordering them not to share my personal information with anyone. The court previously issued an order to my HOA to receive training in the Open Meeting Act after they were fined for violating it. The small claims court is often slammed by ElleN for some reason. It is a valuable resource for consumers.

If a reader here wants to trust your advice to take any and all HOA disputes to small claims court, then they should go for it. If one is on a budget, I suggest taking this matter (of small claims court jurisdiction) to a free legal clinic in the area and seeing if the attorneys their can offer insight.

In TerriS6's case, I figure the HOA board had lousy legal advice or the small claims court judge wanted to spare the taxpayer more costs.

All I can do is (1) provide the statute sections that are clear about the limits to injunctive relief in small claims court; (2) point out that TerriS6 continually ignores the wording in many references that speak to how the jurisdiction of small claims court in HOA disputes that do not involve money is limited to election disputes and records requests; and (3) point out that by TerriS6's reasoning, small claims court has jurisdiction over any request for injunctive relief (whether a HOA is involved or not). This is false.

Any DS statute that allows for a "civil action" permits a small claims action as small claims court is included in the definition of a "civil action."

... when there is a genuine conflict between a statute section and a covenant. I am not sure there is a conflict here.

You have yet to explain why the three citations I provided above say otherwise. As well the statute section on when a small claims court has jurisdiction is clear. Interested readers can google further and probably find more legal sites that say the same thing.

I agree to disagree. Nothing TerriS6 can say on these particular points will change my mind. She can have the last word.