QUESTION: Will you please explain the "rules" for me? I understand that the CC&Rs are cast in concrete (almost) and must be enforced. We have a booklet of rules made up by the board, such as no screen doors, no basketball hoops, etc. Can they enforce rules they make up as they go along?
ANSWER: If authorized statutorily or in the governing documents, boards can adopt and enforce rules. Your CC&Rs are like California's constitution--in the same way that only voters can amend the constitution, only members can amend the CC&Rs. Your rules are like state laws. Just as legislators in Sacramento can pass laws consistent with the constitution, boards may adopt rules consistent with the CC&Rs.
For example, if your CC&Rs allow owners to have a dog, boards can pass rules requiring that dogs be on a leash and not bark excessively. Accordingly, an association's rules typically cover pets, parking, signs, nuisance noise, use of recreational facilities and the like. The importance of such restrictions has been recognized by the courts:
Use restrictions are an inherent part of any common interest development and are crucial to the stable, planned environment of any shared ownership arrangement. (Nahrstedt v. Lakeside Village (1994) 8 Cal.4th 361, 372.)
[S]ubordination of individual property rights to the collective judgment of the owners association together with restrictions on the use of real property comprise the chief attributes of owning property in a common interest development. ... [I]nherent in the condominium concept is the principle that to promote the health, happiness, and peace of mind of the majority of the unit owners since they are living in such close proximity and using facilities in common, each unit owner must give up a certain degree of freedom of choice which he [or she] might otherwise enjoy in separate, privately owned property. (Id. at 374.)
Enforceability. Because CC&Rs are approved by the membership and recorded, they are presumed reasonable. Because rules are adopted by the board of directors and can change from board to board, they are not presumed reasonable. If a rule is challenged in court, the board must convince the court the rule is not arbitrary, arbitrary, violate public policy, or impose a burden that outweighs any benefit.
Adopting Rules. As provided for in the Davis-Stirling Act, boards must give written notice to the membership of proposed rule changes and a 28-day period so the membership can comment on those changes. If the board adopts a rule despite membership objections, there is a process whereby the membership can veto the rule. These requirements do not apply to policies and procedures.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.