QUESTION:
Our HOA has proposed a policy where we stop trash pick-up
from homes that are more than 90 days delinquent. We save money since we don't have to pay for
service to those owners. Do we need to send the proposed policy to members and give 30 days to respond since there isn't any
monetary penalty involved?
ANSWER:
It is always a good practice to send policy changes to the membership
for review and comment. In this case, I'm not sure you can adopt the
policy even if the membership supported it.
Operating Rules.
Your proposed policy appears to fall under the definition of an
"operating rule." The Davis-Stirling Act defines an operating rule as a
regulation adopted by a board that applies generally to management and
operations or the conduct of the business and affairs of the
association.
Civil Code §4340.
Even though you are not imposing a monetary penalty, suspension of
services arguably falls into the category of member penalties for
violation of the CC&Rs (failure to pay assessments). (
Civ. Code §4355.) As such, a 30-day notice should be given to the membership for review and comment. (
Civ. Code §4360.)
Enforceability. The Davis-Stirling Act goes on to state that an operating rule is valid and enforceable only if it is:
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in writing,
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within the authority of the board,
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not in conflict with the law and the governing documents,
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adopted in good faith and in substantial compliance with the requirements of statute, and
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reasonable. (Civil Code §4350)
Reasonableness.
If your policy ended up in court, a judge could decide that suspension
of trash removal was inconsistent with your governing documents and/or
unreasonable. If your CC&Rs are typical, they have a generic
provision obligating the board to act in the best interests of the
health and safety of the membership. The accumulation of garbage
attracts vermin, i.e., flies, cockroaches, mice, rats and the like. That
creates a potential health risk for the community. Even if health and
safety were not covered by your governing documents, a court could still
find the practice unreasonable.
Contrary to Law? California's Supreme Court has determined that associations are "for all practical purposes" a landlord. (
Francis T v. Village Green.) Under landlord-tenant law, landlords may not willfully
cause, "directly or indirectly," the interruption or termination of
utility service to a tenant's residence. Utilities covered include, but
are not limited to, water, heat, light, electricity, telephone, gas,
elevators and refrigeration. (
Civ. Code §789.3.) A judge could decide
that trash removal qualifies as a "utility" and could not be withheld by
the association.
ASSISTANCE: Associations needing legal assistance can
contact us.
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