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:
within the authority of the board,
not in conflict with the law and the governing documents,
adopted in good faith and in substantial compliance with the requirements of statute, and
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. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.