Enforcing CC&Rs & Rules. The ability of an association to enforce its CC&Rs is well established. CC&Rs are enforceable equitable servitudes and, unless the CC&Rs state otherwise, can be enforced by the association. (Civ. Code § 5975(a).) Moreover, associations have a duty to enforce their governing documents. (Nahrstedt v. Lakeside Village.) If a board fails to enforce them, members can go to court to compel enforcement. (Ekstrom v. Marquesa.)
Enforcement Mechanism. What's missing from the Davis-Stirling Act and case law is any mention of how enforcement occurs. The Act simply states that CC&Rs are enforceable. (Civ. Code § 5975(a).) The mechanism for enforcing CC&Rs and Rules is left to associations to decide. Most use three methods: fines, suspension of privileges, and litigation.
Adopting Rules. To adopt rules, an association must have rulemaking authority conferred by law, the CC&Rs, articles of incorporation or bylaws. (Civ. Code § 4350(b).) Some older developments are silent on rulemaking authority. Fortunately, governing documents in newer developments all have rulemaking authority since the Department of Real Estate requires it. (Cal. Code Regs, tit. 10, § 2792.21(a)(7).) The board can adopt adopts rules once rulemaking authority has been established.
Statutory Authority. Absent rulemaking authority in the governing documents, associations still have statutory authority to adopt rules for specific matters, such as election rules (Civ. Code § 5105), architectural rules (Civ. Code § 4765), IDR policies (Civ. Code § 5905) and collection policies (Civ. Code § 5730).
Rule Adoption Procedure. Once authority for adopting rules has been established, boards of directors must follow a specific process for enacting rules.
Authority to Fine. If an association has authority to adopt rules, the ability to enforce those rules using monetary penalties (fines) is implied. The court of appeal in a 1995 case, addressed the point. The plaintiff in the case had challenged the association's authority to fine pointing out the CC&Rs did not grant the association the power to impose fines. The court did not dispute plaintiff's assertion but, instead, noted the governing documents gave the association the authority to enact rules and concluded:
[B]ecause the authorization for the...rules is itself contained in the recorded...CC&Rs, Liebler is incorrect in asserting such fines are unauthorized... (Liebler v. Point Loma.)
The conclusion of the court is that the authority to enact rules necessarily carries with it the authority to enforce those rules, whether by fines or otherwise. Once an association has authority to adopt rules, it can adopt a fine schedule.
Adopting and Imposing Penalties Fines. To impose penalties for rules violations, associations must adopt a fine schedule and give notice to the membership of that schedule. The procedure for adopting fines is the same as adopting rules. Fines must be reasonable and appropriate to the violations. Moreover, penalties can only be imposed after due process has been followed. Once levied, fines are normally collected by filing a small claims action.
Recommendation: Older documents that lack authority to enact rules should be amended to include authorizing language.