QUESTION: Our CC&Rs and bylaws have never been revised. In a number of provisions, powers are given to the "Declarant." Since the builder has been gone for over 20 years, should these provisions be removed from our documents?
ANSWER: Yes they should. 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? Is the association allowed to modify or delete declarant language? In short, the association is not a successor to the developer and does not have a declarant's powers. And yes, associations can delete declarant provisions once the declarant no longer has an interest in the development.
Declarant Defined. As defined by the Davis-Stirling Act, a "declarant" is one who creates the original documents that govern the association. (Civ. Code §4130.) A declarant (the developer) normally gives himself a great deal of power and voting rights so he can complete the development and sell units without interference from homeowners.
Removing Provisions. Declarant language should be deleted along with all the legalese that goes with it. It gives associations the opportunity to clarify maintenance issues (always a source of conflict and potential liability), add director qualifications, incorporate changes in the law, and make the documents easier to read.
Approval Requirement. Declarant provisions may be deleted by a majority of those owners representing a quorum, regardless of any higher amendment requirements called for in the documents. The membership may delete any provisions that are 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.
This may be done only after the developer has completed construction of the development, has terminated construction activities, and has terminated his or her marketing activities for the sale, lease, or other disposition of separate interests within the development. (Civ. Code §4230.)
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