Adams Stirling PLC


Members have the right to petition the board to schedule a special membership meeting for any “lawful purpose.” (Corp. Code § 7510(e).) Petitioning the board for a special membership meeting to amend the governing documents with a membership proposed amendment is not one of them.

Allocation of Powers. The allocation of powers is found in Corporations Code § 7210 which states that except for those matters that require member consent or approval either by some statute or by the corporation’s documents, all corporate powers are exercised by, or under the direction of, the board of directors. Powers allocated to the membership (by their governing documents and various statutes) generally include electing and recalling directors, amending governing documents, and approving assessments above a certain percentage. For a more complete list of the allocation of powers, see "Powers & Rights."

Fiduciary Duties. When it comes to amendments, the board has access to legal counsel to properly evaluate and word amendments to not conflict with existing law and for the best interests of the association. In addition, directors have a fiduciary duty to act in the best interests of the membership, whereas members do not. Individuals not serving on the board have no similar obligation to act in the best interests of the community. Instead, they are free to act in their own best interests.

Rationale. There is good reason to restrict amendment drafting powers to the board. If members could propose and vote on their own amendments, they could amend the CC&Rs to eliminate all assessments and cease maintaining the common areas. This would be disastrous for the association. Or, in the alternative, propose amendments they know will be voted down by the membership so as to torment everyone and run-up expenses with expensive mailings and inspectors of election. The larger the association, the more expensive the process. For more information, see Pure Democracy.

Proper Procedure. If members want to amend their governing documents, they must present their idea to the board so it can go through proper legal evaluation. If the idea is good, the board can have language properly drafted and ballots prepared for presentation to the membership for approval.

ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.

Adams Stirling PLC