The normal process for amending an association's CC&Rs is for legal counsel to draft an amendment and the membership to approve it. Once the amendment is approved, it is submitted to the Office of the County Recorder for recordation. There are, however, specific instances when a board has authority to approve amendments. These are provided by statute. The Davis-Stirling Act authorizes changes in some instances and mandates it in others. Following are amendments Boards can adopt without a vote of the membership:
1. Discriminatory Language. Government Code § 12955 prohibits illegal discriminatory language in governing documents. This includes "race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, veteran or military status, or genetic information of that person." Civil Code § 4225(b) requires boards to remove such language from their association's governing documents:
Notwithstanding any other provision of law or provision of the governing documents, the board, without approval of the members, shall amend any declaration or other governing document that includes a restrictive covenant prohibited by this section to delete the restrictive covenant, and shall restate the declaration or other governing document without the restrictive covenant but with no other change to the declaration or governing document.
2. Declarant Language. Declarant language can be very confusing to directors and members alike. Is the association a successor to the declarant? Does the association have the powers of the declarant? In short, the association is not a successor to the developer and does not have a declarant's powers. Fortunately, the Davis-Stirling Act allows boards to remove such provisions from an association's governing documents. Civil Code § 4230(a) provides:
Notwithstanding any provision of the governing documents to the contrary, the board may, after the developer has completed construction of the development, has terminated construction activities, and has terminated marketing activities for the sale, lease, or other disposition of separate interests within the development, adopt an amendment deleting from any of the governing documents any provision which is unequivocally designed and intended, or which by its nature can only have been designed or intended, to facilitate the developer in completing the construction or marketing of the development.
Before adopting the amendment, the board must deliver to all members, a copy of the proposed amendment at least At least 30 days prior to the time, date, and place the board will consider adoption of the amendments. (Civ. Code § 4230(b).)
3. Outdated Code References. On January 1, 2014, the Davis-Stirling Act was completely reformatted and renumbered. Previously, all statutory sections were in the 1350 to 1378 range. On January 1, the Act moved into the 4000 to 6150 range. If governing documents include references to the old numbering scheme, boards can amend their documents to correct the statutory references. (Civ. Code § 4235.)
4. Rent Restrictions. Boards are required to amend their governing documents to remove unreasonable rental restrictions to bring them into conformity with statuory requirements.
5. Bylaw Amendments. Unless restricted by the bylaws (Corp. Code §7150(c)), certain elements of the bylaws can also be amended by the board, unless the amendments (i) materially and adversely affect the rights of members as to voting, dissolution, redemption, or transfer; (ii) increase or decrease the number of members authorized in total or for any class; (iii) effect an exchange, reclassification or cancellation of all or part of the memberships; or (iv) authorize a new class of membership. (Corp. Code §7150(a).)
Recommendation: Associations should involve HOA legal counsel in amendment/restatement projects. Doing so reduces the risk of legal challenges
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