Rulemaking Authority. Before enacting rules and regulations, associations must have rulemaking authority either statutorily or through its governing documents.
Procedure. Following is a summary of the procedure used for adopting new rules or amending existing rules:
- Attorney prepares rules.
- Board reviews, approves and gives general notice (we recommend mailing) to members. Notice should include purpose and effect, text of rules and set a deadline for written comments at least 28 days later. Notice should also set an open meeting at least 28 days later.
- At open meeting, allow more comments at open forum. Consider all comments. Vote to approve or not.
- Give notice of approval within 15 days.
"Operating Rules" are broadly defined as any rule or regulation that applies to the management and operation of a common interest development or the conduct of its business and affairs. (Civ. Code §4340.) As provided for in Civil Code §4355(a), "Operating Rules" are specifically defined as a rule or regulation that applies to:
- Use of the common area or of an exclusive use common area.
- Use of a separate interest, including any aesthetic or architectural standards that govern alteration of a separate interest.
- Member discipline, including any schedule of monetary penalties for violation of the governing documents and any procedure for the imposition of penalties.
- Delinquent assessment payment plans.
- Resolution of assessment disputes.
- Reviewing and approving or disapproving a proposed physical change to a member's separate interest or to the common area.
- Election rules. (No amendments are allowed within 90 days of an election.)
Exceptions. Per Civil Code §4355(b), the following do not fall under the definition of an "Operating Rule" and are free of the requirements of Civil Code sections 4360 and 4365:
- A decision regarding maintenance of the common area.
- A decision on a specific matter that is not intended to apply generally.
- A decision setting the amount of a regular or special assessment.
- A rule change that is required by law, if the board has no discretion as to the substantive effect of the rule change.
- Issuance of a document that merely repeats existing law or the governing documents.
Notice of Proposed Change. Before adopting or amending an Operating Rule or changing the fine schedule, the board must provide notice of a proposed rule change at least 28 days before making the rule change. (Civ. Code §4360(a).)
- Text of Change. The notice must include the text of the proposed rule change and a description of its purpose and effect.
- Emergency. Notice is not required if the board determines that an immediate rule change is necessary to address an imminent threat to public health or safety or imminent risk of substantial economic loss to the association.
Comments by Members. A decision on a proposed rule change must be made at a board meeting, after consideration of any comments made by association members. (Civ. Code §4360(b).) The board must consider comments by members but is not required to adopt them.
Notice of Adoption. Within 15 days of making the rule change, the board must deliver general notice pursuant to Section 4045 of the rule change. (Civ. Code §4360(c).)
Membership Veto. The membership has a limited right to veto new rules and rule changes.
Emergency Rule Change. If the board determines that an immediate rule change is required to address an imminent threat to public health or safety, or an imminent risk of substantial economic loss to the association, it may make an emergency rule change; and no 28-day noticed waiting period is required. An emergency rule change is effective for 120 days, unless the rule change provides for a shorter effective period. ( Civ. Code §4360(d).)
Nonsubstantive Changes. If the board is doing nothing more than correcting grammar or renumbering provisions, the 28-day notice period is not triggered since the rules are not being changed. Even so, the board must distribute a copy of the clean set along with an explanation of what was done and that no changes were made to the rules.
Enforceable. To be enforceable, operating rules must meet certain criteria.
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