Frequently Asked Questions
1. What is a common interest development (CID)?
A common interest development - also known as a CID or common interest community - is a type of real property development in which owners have exclusive rights to a portion of the CID (their home or business) and share ownership of and/or the right to use the remainder (common area) with the CID's other owners.
CIDs are managed by corporations called owners' associations (HOAs). Each owner is a member of their association. Associations are managed by a board of directors, who are typically elected from among the members.
As the name suggests, common interest developments leverage pooled resources and economies of scale to offer more affordable ownership, better amenities, and an enhanced quality of life. As of 2024, almost 40% of Californians live in over 50,000 CIDs statewide. Future CID growth is expected to be strong.
California recognizes four types of CIDs: condominium projects, planned developments, stock cooperatives, and community apartment projects. Almost 90% of the state's CIDs consist of two types, condominium projects (~ 56%) and planned developments (~ 33%).
The four types of CID differ based on how ownership or use rights are allocated, not architectural style. In a condominium project, owners own a unit, which is typically an airspace bound by the interior surfaces of the surrounding common area building components. In a planned development, owners own a lot, which consists of a residence and the land and airspace. How title is held to the common area varies as well. Your deed and the first or second page of your CC&Rs should indicate which type of CID you live in.
CIDs vary widely in size, composition, and purpose. They may be a handful of units or tens of thousands of lots. They may be composed of detached single-family homes, townhouses, high-rises, or a combination of architectural styles, and may serve residential, mixed-use, commercial, or industrial purposes. They can even be mobile home parks or marinas. Nevertheless, they all share the same basic structure: exclusive rights to a home or business, shared ownership and/or use of common area, and representative self-governance.
California's CIDs are subject to a complex body of state law. Residential and mixed-use CIDs are primarily governed by the Davis-Stirling Common Interest Development Act (Civil Code §§ 4000-6150), which is essential a compilation of consumer protection laws designed to protect residential homeowners and homebuyers. Effective January 1, 2014, commercial and industrial CIDs are governed by the Commercial and Industrial Common Interest Development Act (Civil Code §§ 6500-6876), which eliminated many of the Davis-Stirling Act's costly and time-consuming operating requirements. The incorporated associations of all CID types are governed by California's Corporations Code, typically the Nonprofit Mutual Benefit Corporation Law (Corporations Code §§ 7110-8910).
Please contact me today to request an update proposal.
CIDs are managed by corporations called owners' associations (HOAs). Each owner is a member of their association. Associations are managed by a board of directors, who are typically elected from among the members.
As the name suggests, common interest developments leverage pooled resources and economies of scale to offer more affordable ownership, better amenities, and an enhanced quality of life. As of 2024, almost 40% of Californians live in over 50,000 CIDs statewide. Future CID growth is expected to be strong.
California recognizes four types of CIDs: condominium projects, planned developments, stock cooperatives, and community apartment projects. Almost 90% of the state's CIDs consist of two types, condominium projects (~ 56%) and planned developments (~ 33%).
The four types of CID differ based on how ownership or use rights are allocated, not architectural style. In a condominium project, owners own a unit, which is typically an airspace bound by the interior surfaces of the surrounding common area building components. In a planned development, owners own a lot, which consists of a residence and the land and airspace. How title is held to the common area varies as well. Your deed and the first or second page of your CC&Rs should indicate which type of CID you live in.
CIDs vary widely in size, composition, and purpose. They may be a handful of units or tens of thousands of lots. They may be composed of detached single-family homes, townhouses, high-rises, or a combination of architectural styles, and may serve residential, mixed-use, commercial, or industrial purposes. They can even be mobile home parks or marinas. Nevertheless, they all share the same basic structure: exclusive rights to a home or business, shared ownership and/or use of common area, and representative self-governance.
California's CIDs are subject to a complex body of state law. Residential and mixed-use CIDs are primarily governed by the Davis-Stirling Common Interest Development Act (Civil Code §§ 4000-6150), which is essential a compilation of consumer protection laws designed to protect residential homeowners and homebuyers. Effective January 1, 2014, commercial and industrial CIDs are governed by the Commercial and Industrial Common Interest Development Act (Civil Code §§ 6500-6876), which eliminated many of the Davis-Stirling Act's costly and time-consuming operating requirements. The incorporated associations of all CID types are governed by California's Corporations Code, typically the Nonprofit Mutual Benefit Corporation Law (Corporations Code §§ 7110-8910).
Please contact me today to request an update proposal.
2. What is an owners' association (HOA)?
An owners' association - also known as an association, homeowners' association, HOA, or community association - is a corporation that manages a common interest development (CID).
Associations and CIDs are not the same thing. A CID is real property. An association is a corporation that manages such real property. As such, one does not "live in an HOA," as is commonly heard. One lives in a CID.
All CIDs must be managed by an association. Associations may be incorporated or unincorporated. Incorporation offers greater liability protections and tends to enhance the availability and affordability of financing and insurance. I offer incorporation as an additional service as part of my update service.
Each owner is a member of their association. Associations are managed by a board of directors, who are typically elected from among the members. Associations carry out a range of functions for their CIDs, including maintenance, aesthetic and architectural control, assessment collection, governing document enforcement, and more. Bylaws typically provide the bulk of the provisions governing an association.
Please contact me today to request an update proposal.
Associations and CIDs are not the same thing. A CID is real property. An association is a corporation that manages such real property. As such, one does not "live in an HOA," as is commonly heard. One lives in a CID.
All CIDs must be managed by an association. Associations may be incorporated or unincorporated. Incorporation offers greater liability protections and tends to enhance the availability and affordability of financing and insurance. I offer incorporation as an additional service as part of my update service.
Each owner is a member of their association. Associations are managed by a board of directors, who are typically elected from among the members. Associations carry out a range of functions for their CIDs, including maintenance, aesthetic and architectural control, assessment collection, governing document enforcement, and more. Bylaws typically provide the bulk of the provisions governing an association.
Please contact me today to request an update proposal.
3. What are governing documents?
Governing documents are defined by law as the declaration of covenants, conditions, and restrictions (CC&Rs) and any other documents which govern the operation of a CID or its association. In addition to the CC&Rs, the main governing documents for most CIDs are the bylaws, articles of incorporation, and any operating rules or policies adopted by the board, as well as the condominium plan and/or map. Plans and maps describe the physical layout of a CID and typically do not require updates.
Governing documents may be rendered legally unenforceable by changes in the law, a community’s circumstances, or other factors. In the event of conflict between the law and governing documents, the law typically prevails. As such, obsolete governing documents can seriously mislead boards, owners, managers, lenders, insurers, potential purchasers, service providers, vendors, and others as to their legal rights and responsibilities. This can lead to confusion, conflict, and costly legal liability.
Please contact me today to request an update proposal.
Governing documents may be rendered legally unenforceable by changes in the law, a community’s circumstances, or other factors. In the event of conflict between the law and governing documents, the law typically prevails. As such, obsolete governing documents can seriously mislead boards, owners, managers, lenders, insurers, potential purchasers, service providers, vendors, and others as to their legal rights and responsibilities. This can lead to confusion, conflict, and costly legal liability.
Please contact me today to request an update proposal.
4. What are CC&Rs? Are your CC&Rs AB 3182 compliant?
CC&Rs is an acronym for "covenants, conditions, and restrictions." CC&Rs - also known as a declaration - are the primary governing document for CIDs. CC&Rs create their CID and control its real property. As such, CC&Rs primarily address issues related to land use, e.g., use restrictions, maintenance and repair responsibilities, assessment payment and collections, aesthetic and architectural controls, insurance requirements, and more.
Legally current CC&Rs are now more important than ever given Assembly Bill 3182 ("AB 3182"), which:
I discuss AB 3182 in this and other blog posts. My update service includes AB 3182 compliant CC&Rs.
Please contact me today to request an update proposal.
Legally current CC&Rs are now more important than ever given Assembly Bill 3182 ("AB 3182"), which:
- voided CC&R and other governing document provisions that require minimum lease terms of longer than 30 days, such as provisions that require minimum six month or one year leases;
- voided provisions that cap rentals at less than 25% of the separate interests, with ADUs and JADUs largely exempt from higher caps;
- voided provisions that prohibit new owners from leasing;
- voided provisions that “unreasonably restrict” renting, such as provisions that ban dormitory-style lodging or restrict the number of vehicles per home; and
- requires associations to amend their CC&Rs and other governing documents ASAP to remove voided provisions or face damage claims and civil penalties of up to $1,000.
I discuss AB 3182 in this and other blog posts. My update service includes AB 3182 compliant CC&Rs.
Please contact me today to request an update proposal.
5. What are bylaws? Are your bylaws SB 323 compliant?
Bylaws are the governing document that controls a CID's owners' association (HOA). As such, bylaws primarily address issues related to corporate governance, e.g., member voting, director qualifications and elections, board and member meeting protocol, director and officer conflict of interest controls, and more.
Legally current bylaws are now more important than ever given recent Senate Bill 323 ("SB 323"), which dramatically changed association election law, including the laws controlling election challenges, candidate and director qualifications, election rules, election timelines, pre-election notices, inspectors, association recordkeeping, and more. I discuss SB 323 and its effects in this and other blog posts. My update service includes new SB 323 compliant bylaws.
Please contact me today to request an update proposal.
Legally current bylaws are now more important than ever given recent Senate Bill 323 ("SB 323"), which dramatically changed association election law, including the laws controlling election challenges, candidate and director qualifications, election rules, election timelines, pre-election notices, inspectors, association recordkeeping, and more. I discuss SB 323 and its effects in this and other blog posts. My update service includes new SB 323 compliant bylaws.
Please contact me today to request an update proposal.
6. What are articles of incorporation?
The articles of incorporation is a governing document that is filed with California's Secretary of State if an association is incorporated. Articles set forth the general structure and purpose of an association as a corporate entity. Articles are typically one to two pages and do not contain specific governance provisions. As such, most associations do not require updates to their articles of incorporation.
Some unincorporated associations feature articles of association, which fulfill the same general purpose. Although associations are not required to be incorporated, I offer incorporation as an additional service as part of my update service. Incorporation offers greater liability protections and tends to enhance the availability and affordability of financing and insurance.
Please contact me today to request an update proposal.
Some unincorporated associations feature articles of association, which fulfill the same general purpose. Although associations are not required to be incorporated, I offer incorporation as an additional service as part of my update service. Incorporation offers greater liability protections and tends to enhance the availability and affordability of financing and insurance.
Please contact me today to request an update proposal.
7. What are operating rules?
Operating rules are rules and policies adopted by boards to assist in governing their CID or association. Operating rules are typically adopted to supplement and clarify provisions contained in a CID's CC&Rs or bylaws.
Unlike amendments to CC&Rs, bylaws, or articles, adopting, amending, and repealing operating rules does not require the consent of the members. However, with the apparent exception of SB 323 compliant election rules, operating rules may not conflict with the provisions contained in a CID's other governing documents, and are afforded a less favorable standard of legal interpretation in the event of a dispute. Accordingly, for many changes to a community's operating practices, a complete update is a more advisable approach.
Please contact me today to request an update proposal.
Unlike amendments to CC&Rs, bylaws, or articles, adopting, amending, and repealing operating rules does not require the consent of the members. However, with the apparent exception of SB 323 compliant election rules, operating rules may not conflict with the provisions contained in a CID's other governing documents, and are afforded a less favorable standard of legal interpretation in the event of a dispute. Accordingly, for many changes to a community's operating practices, a complete update is a more advisable approach.
Please contact me today to request an update proposal.
8. What is a maintenance matrix?
A maintenance matrix is a governing document that clearly spells out, on an item-by-item basis, responsibility for maintenance, repair, and replacement as provided by your community's CC&Rs. Matrices are generally adopted as operating rules. A typical matrix line-item might state:
Residence roof gutters | Maintenance: Owner | Repair and replacement: Association | Authority: CC&R Section 6.2(b).
Matrices are effective management tools. They permit boards, owners, managers, service providers, and others to quickly and accurately determine legal responsibility for each item of property in a community, including responsibility for particular types of deterioration and damage and for exclusive use common area. This can reduce confusion, conflict, and costly liability, as well as management and vendors costs.
My update service includes a maintenance matrix. Please contact me today to request an update proposal.
Residence roof gutters | Maintenance: Owner | Repair and replacement: Association | Authority: CC&R Section 6.2(b).
Matrices are effective management tools. They permit boards, owners, managers, service providers, and others to quickly and accurately determine legal responsibility for each item of property in a community, including responsibility for particular types of deterioration and damage and for exclusive use common area. This can reduce confusion, conflict, and costly liability, as well as management and vendors costs.
My update service includes a maintenance matrix. Please contact me today to request an update proposal.
9. What are election rules? Are your election rules SB 323 compliant?
Election rules are operating rules that describe and define an HOA's election processes. As provided by Civil Code section 5105, all residential and mixed-use associations must adopt election rules. Associations without election rules may face legal challenges to their election results, including court-ordered voiding, and may be liable for civil penalties and the challenging party’s attorney's fees.
Election rules are now more important than ever given recent Senate Bill 323 ("SB 323"). SB 323 dramatically changed association election law, including the laws controlling election challenges, candidate and director qualifications, election rules, election timelines, pre-election notices, inspectors, association recordkeeping, and more.
SB 323 sets forth a laundry-list of new provisions which must be contained in an association’s election rules. Associations which do not have stand-alone, SB 323 compliant election rules can have their election results voided even if their election was otherwise flawless.
I discuss SB 323 and its effects in this and other blog posts. My update service includes new SB 323 compliant election rules.
Please contact me today to request an update proposal.
Election rules are now more important than ever given recent Senate Bill 323 ("SB 323"). SB 323 dramatically changed association election law, including the laws controlling election challenges, candidate and director qualifications, election rules, election timelines, pre-election notices, inspectors, association recordkeeping, and more.
SB 323 sets forth a laundry-list of new provisions which must be contained in an association’s election rules. Associations which do not have stand-alone, SB 323 compliant election rules can have their election results voided even if their election was otherwise flawless.
I discuss SB 323 and its effects in this and other blog posts. My update service includes new SB 323 compliant election rules.
Please contact me today to request an update proposal.
10. What is a governing document update?
A governing document update is a three-step process that involves:
As discussed in the next question, updates offer a number of financial and practical benefits, including reduced confusion, conflict, and potential liability, reduced management, finance, insurance, and vendor costs, and enhanced community attractiveness, desirability, and stability, as well as enhanced property values.
Updates should be performed by an experienced common interest attorney familiar with the range of legal and practical pitfalls which can occur during each of the above steps, including those caused by poor prior drafting, board and member conflicts, and complex third-party approval requirements. The attorney should also be adept at ensuring your update project proceeds in a timely, efficient, and understandable manner. Finally, she or he must be up to speed with this Davis-Stirling Act's frequent, often surprising changes, such as recent Senate Bill 323 ("SB 323") and Assembly Bill 3182 ("AB 3182").
Please contact me today to request an update proposal.
- Drafting new governing documents that reflect current common interest law - including SB 323 and AB 3182 - modern best practices, and your community's evolved practical needs, while restating (repeating) those provisions of your current documents which should not be changed, such as property rights, unique easements, and legally enforceable provisions the board did not request changed;
- Obtaining member and third-party approval, if required, to adopt the drafts; and
- Implementing the new documents so that they are legally effective.
As discussed in the next question, updates offer a number of financial and practical benefits, including reduced confusion, conflict, and potential liability, reduced management, finance, insurance, and vendor costs, and enhanced community attractiveness, desirability, and stability, as well as enhanced property values.
Updates should be performed by an experienced common interest attorney familiar with the range of legal and practical pitfalls which can occur during each of the above steps, including those caused by poor prior drafting, board and member conflicts, and complex third-party approval requirements. The attorney should also be adept at ensuring your update project proceeds in a timely, efficient, and understandable manner. Finally, she or he must be up to speed with this Davis-Stirling Act's frequent, often surprising changes, such as recent Senate Bill 323 ("SB 323") and Assembly Bill 3182 ("AB 3182").
Please contact me today to request an update proposal.
11. What are the benefits of an update?
New governing documents offer a number of financial and practical benefits:
Collectively, these benefits can reduce costs, enhance neighbor relations, and increase property values.
Please contact me today to request an update proposal.
- Reflect current law. California’s complex body of common interest law has grown dramatically in recent years. Governing documents that fail to reflect these changes can seriously mislead boards, owners, managers, lenders, insurers, and others as to their legal rights and responsibilities, which can lead to confusion, conflict, and costly legal liability. New governing documents help ensure your development’s critical operating instructions are legally correct.
As discussed on my blog, Assembly Bill 3182 and Senate Bill 323 now make legally current governing documents more important than ever. These bills require associations to perform certain updates or face costly legal liability, including civil penalties. My updated documents reflect current California law - including AB 3182 and SB 323 - in full. - Reflect current needs. As common interest developments mature, their practical needs often change. Use restrictions, maintenance requirements, assessment allocations, and other provisions drafted decades ago often fail to reflect current realities. New governing documents that reflect your community's current needs help your board and management govern in an effective and efficient manner.
- Reflect best practices. The common interest industry has developed a suite of best practices designed to enhance long-term stability and success. These include vetted collection, disciplinary, and architectural controls, efficient election practices, comprehensive liability protections, detailed allocations of maintenance responsibilities, and more. New governing documents that reflect modern best practices help ensure your development remains an attractive and desirable community for decades to come.
- Eliminate obsolete provisions. Developer-drafted documents are imposed to ensure quick sales and control, not long-term success. Once development is complete, 30-40% of the provisions become obsolete, and the remainder often fail to provide for important needs, such as lease restrictions. New governing documents eliminate obsolete provisions and reflect your community’s democratic desires, which can reduce potential liability and enhance owner and resident acceptance of HOA governance.
- Enhance creditworthiness and insurability. Lenders, insurers, and service providers may review governing documents when deciding whether to do business with a community. New governing documents that are legally and practically current and reflect modern best practices can positively affect such reviews, which can lead to significant financing, insurance, and vendor savings and an increased pool of potential purchasers.
Collectively, these benefits can reduce costs, enhance neighbor relations, and increase property values.
Please contact me today to request an update proposal.
12. How can we tell whether we're due for an update?
Every community's legal and practical circumstances are different. Nevertheless, the following factors tend to indicate an update would be beneficial:
- Your current governing documents are over 10 years old. This is typically the most important factor, as California's complex body of common interest law has grown dramatically in recent years. Legally obsolete governing documents greatly increase the risk of confusion, conflict, and costly legal liability.
As discussed in the previous question, this issue of legally current governing documents is now more important than ever. As discussed in my blog, Senate Bill 323 and Assembly Bill 3182 now require associations to perform certain updates or face costly liability and civil penalties. My updated documents reflect current California law - including SB 323 and AB 3182 - in full. - For commercial and industrial CIDs, this period is much shorter. As discussed on my Commercial page, many business developments with documents drafted prior to 2014 are unable to take advantage of the Commercial Act's beneficial deregulation, which can reduce costs, increase profits, and enhance marketability.
- Your documents fail to address your community's current needs, such as your evolved use restrictions, changed maintenance requirements, or current cost sharing needs.
- Your documents were drafted by your developer. Developers impose governing documents to ensure short-term sales and control, not long-term success. Once development is complete, 30-40% of the provisions are typically obsolete, and the remainder often fail to provide for important long-term needs, such as lease restrictions.
- Your documents lack modern best practice provisions, such as vetted collection, disciplinary and architectural controls, efficient election practices, comprehensive liability protections, detailed allocations of maintenance responsibilities, and more.
- Your documents are confusing or contradictory or have forced your board to seek costly legal opinions or initiate or defend costly litigation.
- Your documents have negatively impacted the ability of the association, owners, or potential purchasers to obtain affordable financing, insurance, or vendor services.
- Your documents have been subject to numerous amendments. Forcing readers to track which provisions are legally effective across multiple documents is an invitation to confusion, conflict, and potential liability.
- Your documents are missing pages or have been photocopied, scanned, and faxed to the point of illegibility, or are outright missing.
- Your documents have otherwise negatively impacted the value, attractiveness, or desirability of your homes or businesses or your community as a whole.
13. Why should we update when the law is always changing?
Before 2021, common interest law generally changed in an incremental manner. The 2006 election law and 2014 recodification of the Davis-Stirling Act were exceptions, but most changes were relatively minor - a new HOA disclosure requirement here or a new owner environmental or civil liberty protection there. As such, periodic updates every 10 years or so were typically sufficient to keep the keep the risk of legal and practical obsolescence to a dull roar, especially for communities with professional, accredited management.
Now, things have changed. Senate Bill 323 ("SB 323") and Assembly Bill 3182 ("AB 3182") represent sweeping changes to association election law and rental restrictions, respectively. Worse, both bills require associations to perform certain updates or face costly liability and civil penalties. The workaround of somewhat dated documents plus a good manager is no longer an option for most communities.
This increased pace of change is leading some associations to give up on compliance. Some do so out of resignation - SB 323 is truly complex - while others are holding out for cleanup legislation. Frankly, I'm not optimistic about help from Sacramento - the elected minds who created these problems aren't likely to solve them. Indeed, they're likely to create more.
The bottom line is that we're all stuck with common interest law as it is, not as we want it to be. We're also stuck with the pace of its change. A complete update now ensures legally current and compliant governing documents and operating practices without the risk of waiting for cleanup legislation, which will take years if it happens at all. If and when the law does change, my documents contain provisions which permit your board to adopt amendments to reflect mandatory changes without conducting a costly and uncertain member vote.
Please contact me today to request an update proposal.
Now, things have changed. Senate Bill 323 ("SB 323") and Assembly Bill 3182 ("AB 3182") represent sweeping changes to association election law and rental restrictions, respectively. Worse, both bills require associations to perform certain updates or face costly liability and civil penalties. The workaround of somewhat dated documents plus a good manager is no longer an option for most communities.
This increased pace of change is leading some associations to give up on compliance. Some do so out of resignation - SB 323 is truly complex - while others are holding out for cleanup legislation. Frankly, I'm not optimistic about help from Sacramento - the elected minds who created these problems aren't likely to solve them. Indeed, they're likely to create more.
The bottom line is that we're all stuck with common interest law as it is, not as we want it to be. We're also stuck with the pace of its change. A complete update now ensures legally current and compliant governing documents and operating practices without the risk of waiting for cleanup legislation, which will take years if it happens at all. If and when the law does change, my documents contain provisions which permit your board to adopt amendments to reflect mandatory changes without conducting a costly and uncertain member vote.
Please contact me today to request an update proposal.
14. Our CC&Rs require two-thirds, 75%, or even 90% of our members to approve an update. Is it worth it to try?
Some CC&Rs impose supermajority amendment-approval requirements. These requirements provide that more than a bare majority of members must approve updates, e.g., two-thirds, 75%, or even 90% of the members.
Supermajority provisions are imposed by developers to restrict the ability of owners to change or eliminate the mass of provisions designed to ensure developer control over construction, sales, and defect claims. As with all provisions in developer-drafted documents, neither you nor your community had a democratic say in their imposition.
Some communities - and the majority of my clients - simply satisfy their supermajority requirements. This is of course easier with lower percentage provisions. As part of my update service, I provide a persuasive cover letter and document summaries the board may send to the members that clearly and concisely explain the purpose of the update and financial and practical benefits of voting yes. This clear connection to value helps ensure yes-votes, especially when combined with the proactive solicitation measures discussed in question 27, below.
For communities who are unable to meet their supermajority requirements despite a diligent vote, the Davis-Stirling Act provides specific relief. Under Civil Code section 4275, associations may file a court petition (lawsuit) for an order deeming their update approved based on bare majority approval. Unfortunately, this relief is only available to residential and mixed-use associations. Furthermore, it is costly and requires demonstrating that the vote was properly and diligently conducted and that more than 50% of the members voted yes. As such, although typically uncontested, Section 4275 petitions represent a costly, last-ditch remedy that should be avoided if possible.
My updated CC&Rs eliminate all supermajority approval requirements in favor of a simple majority. This change makes future amendments easier to carry out while still reflecting the democratic desires of your community. In addition, as discussed in the previous question, my documents contain provisions which permit your board to adopt amendments to reflect mandatory changes without conducting a costly and uncertain member vote.
Please contact me today to request an update proposal.
Supermajority provisions are imposed by developers to restrict the ability of owners to change or eliminate the mass of provisions designed to ensure developer control over construction, sales, and defect claims. As with all provisions in developer-drafted documents, neither you nor your community had a democratic say in their imposition.
Some communities - and the majority of my clients - simply satisfy their supermajority requirements. This is of course easier with lower percentage provisions. As part of my update service, I provide a persuasive cover letter and document summaries the board may send to the members that clearly and concisely explain the purpose of the update and financial and practical benefits of voting yes. This clear connection to value helps ensure yes-votes, especially when combined with the proactive solicitation measures discussed in question 27, below.
For communities who are unable to meet their supermajority requirements despite a diligent vote, the Davis-Stirling Act provides specific relief. Under Civil Code section 4275, associations may file a court petition (lawsuit) for an order deeming their update approved based on bare majority approval. Unfortunately, this relief is only available to residential and mixed-use associations. Furthermore, it is costly and requires demonstrating that the vote was properly and diligently conducted and that more than 50% of the members voted yes. As such, although typically uncontested, Section 4275 petitions represent a costly, last-ditch remedy that should be avoided if possible.
My updated CC&Rs eliminate all supermajority approval requirements in favor of a simple majority. This change makes future amendments easier to carry out while still reflecting the democratic desires of your community. In addition, as discussed in the previous question, my documents contain provisions which permit your board to adopt amendments to reflect mandatory changes without conducting a costly and uncertain member vote.
Please contact me today to request an update proposal.
15. What do you charge for updates?
My exclusive focus on HOA governing documents and virtual, cloud-based practice permit me to offer significantly lower fees than most firms. What I save on salaries, office space, and other overhead, your association saves on legal fees.
Please contact me today to request an update proposal.
Please contact me today to request an update proposal.
16. What are the typical steps of an update?
Most update projects proceed as follows:
Your update project is then complete, and your community can enjoy the benefits of new governing documents that work.
Please contact me today to request an update proposal.
- Your board completes my intake questionnaire, which provides extensive suggestions regarding modern best practices your association may wish to adopt and permits your board to provide detailed feedback regarding your community’s unique needs and circumstances.
- Using your board’s feedback and your current governing documents, I prepare AB 3182 compliant CC&Rs, a maintenance matrix, SB 323 compliant bylaws and election rules, and articles, a cover letter that explains the drafts and current HOA law, and instructions and forms for conducting SB 323 compliant elections.
- Your board reviews the drafts. Unlike other firms, I provide 90-day review deadlines, which help ensure your update project is completed in a timely and efficient manner. As discussed in a recent blog post, this speed is critical given AB 3182's short deadline to amend.
- Once your board approves the drafts, the documents are submitted to your members for a vote. I provide step-by-step SB 323 compliant voting instructions, a secret ballot, and persuasive member communications that clearly and concisely explain the purpose and benefits of the update.
- Once your members approve the update, your board follows my step-by-step instructions for adopting the documents.
Your update project is then complete, and your community can enjoy the benefits of new governing documents that work.
Please contact me today to request an update proposal.
17. How long does an update take?
Most of my clients are able to submit their updated documents to their members for a vote within four to six months of retaining my services and complete their update project within eight to ten months.
As discussed in the previous question, I provide 90-day review deadlines, which track California's quarterly board meeting requirement and help ensure your update project is completed in a timely and efficient manner. As discussed in a recent blog post, this speed is critical given AB 3182's short deadline to amend.
Please contact me today to request an update proposal.
As discussed in the previous question, I provide 90-day review deadlines, which track California's quarterly board meeting requirement and help ensure your update project is completed in a timely and efficient manner. As discussed in a recent blog post, this speed is critical given AB 3182's short deadline to amend.
Please contact me today to request an update proposal.
18. What update services do you provide?
My update service includes a comprehensive intake questionnaire, Assembly Bill 3182 ("AB 3182") compliant CC&Rs, a maintenance matrix, Senate Bill 323 ("SB 323") compliant bylaws and election rules, a cover letter that explains the drafts and current HOA law, instructions and forms for conducting SB 323 compliant elections, persuasive member communications, and more. Most firms charge separately for many of these services.
Please contact me today to request an update proposal.
Please contact me today to request an update proposal.
19. What will our new documents be like?
Your updated governing documents will typically represent a dramatic improvement over your current documents:
Please contact me today to request an update proposal.
- They will include tables of content. The ability to quickly locate relevant provisions enhances usability, which in turn enhances compliance.
- They will be written in plain English using as little legalese as possible. Topics will be grouped in a common-sense manner. When governing documents make sense, compliance and governance improve. I'm looking at you, developer-drafted dispute resolution provisions.
- They will reflect current law - including Senate Bill 323 ("SB 323") and Assembly Bill 3182 ("AB 3182")- and modern best practices in a manner most favorable to your association and the long-term stability and success of your community. This helps ensure your board and management can govern in an effective and efficient manner, which reduces everyone's assessments.
- They will include clear, step-by-step instructions as to how to conduct SB 323 compliant board and other elections, including how to select the bill's complex new timeline and every sample document required.
- They will be carefully tailored to your community's current unique needs and circumstances. I provide a comprehensive intake questionnaire that permits your board to carefully consider and revise almost every aspect of your community's management and governance. This includes eliminating provisions that are no longer desired, adding provisions that are, reallocating maintenance responsibilities, and streamlining your voting and governance practices.
- They will correct ambiguities, inconsistencies, and other flaws in your current documents, such as poorly drafted use restrictions, incomplete maintenance requirements, and missing condemnation and casualty clauses.
- They will eliminate obsolete provisions, including those required by California's Department of Real Estate (DRE) and imposed by your developer. Eliminating obsolete provisions reduces confusion, conflict, and potential liability and enhances member, resident, and tenant acceptance of association governance.
- For communities whose documents have been subject to numerous confusing amendments, your new documents will streamline and combine all prior documents into one consistent set. This eliminates the risk inherent in tracking which provisions are legally effective across multiple documents.
- Your new maintenance matrix will clearly specify, on an item-by-item basis, responsibility for maintenance, repair, and replacement. Matrices permit boards, owners, managers, service providers, and others to quickly and accurately determine legal responsibility for each item of property in a community, including responsibility for particular types of deterioration and damage and for exclusive use common area. This can reduce confusion, conflict, and potential liability, as well as management and service provider costs. Most firms charge separately to provide a matrix.
- For residential and mixed-use associations, your new election rules will clearly specify California's legally required voting and political processes for associations, including those imposed by SB 323. As provided by Civil Code section 5105, all residential and mixed-use associations are required to adopt SB 323 compliant election rules. Associations without election rules may face legal challenges to their election results, including court-ordered voiding, and may be liable for civil penalties and the challenging party’s attorney's fees. Most firms charge separately to provide election rules.
Please contact me today to request an update proposal.
20. Can you provide a sample of your documents?
I'd be happy to. Please email me to request a copy.
21. Would you be willing to meet with our board to discuss our update and your services?
22. How can we ensure our members will approve the update?
Other than death and taxes, life offers no guarantees. Nevertheless, clearly explaining the purpose and benefits of an update can dramatically increase the likelihood of member approval.
As with all of us, members are busy people. The prospect of reviewing a stack of proposed governing documents after a hard day's work can be daunting. Compounding this problem is the fact that many members do not understand their role as members of their association and stakeholders in their community's success. Some even incorrectly view updates as a "power grab" by the board.
My update service is designed to address and overcome such apathy and misconceptions. As part of my service, I provide concise summaries of your new CC&Rs and bylaws and a persuasive cover letter the board may send to the members during the voting process. These documents explain the financial and practical benefits of an update, as discussed in question 11, and its purpose, which is to ensure your community's operating instructions reflect California's greatly expanded legal protections for homeowners. As such, these documents make clear that updates are the opposite of a power grab by the board, as they act to restrict association power, e.g., the power to lien and foreclose, impose discipline, conduct board business, and deny remodeling requests. Compliance with these enhanced restrictions is critical to both protecting owner rights and protecting your association from costly legal liability.
These simple, clear explanations work wonders in ensuring member approval. In addition, I typically suggest boards and management take proactive steps during the pre-vote and voting process to further communicate these explanations, such as by conducting town halls, door-to-door solicitation, and direct mailings.
The bottom line is that each owner has a personal stake in ensuring their community operates in a legally correct and practically sound manner. Once owners understand this stake and their role in it, updates tend to succeed.
Please contact me today to request an update proposal.
As with all of us, members are busy people. The prospect of reviewing a stack of proposed governing documents after a hard day's work can be daunting. Compounding this problem is the fact that many members do not understand their role as members of their association and stakeholders in their community's success. Some even incorrectly view updates as a "power grab" by the board.
My update service is designed to address and overcome such apathy and misconceptions. As part of my service, I provide concise summaries of your new CC&Rs and bylaws and a persuasive cover letter the board may send to the members during the voting process. These documents explain the financial and practical benefits of an update, as discussed in question 11, and its purpose, which is to ensure your community's operating instructions reflect California's greatly expanded legal protections for homeowners. As such, these documents make clear that updates are the opposite of a power grab by the board, as they act to restrict association power, e.g., the power to lien and foreclose, impose discipline, conduct board business, and deny remodeling requests. Compliance with these enhanced restrictions is critical to both protecting owner rights and protecting your association from costly legal liability.
These simple, clear explanations work wonders in ensuring member approval. In addition, I typically suggest boards and management take proactive steps during the pre-vote and voting process to further communicate these explanations, such as by conducting town halls, door-to-door solicitation, and direct mailings.
The bottom line is that each owner has a personal stake in ensuring their community operates in a legally correct and practically sound manner. Once owners understand this stake and their role in it, updates tend to succeed.
Please contact me today to request an update proposal.
23. Can you just amend a few sections of our CC&Rs or bylaws?
For some limited changes, such as the addition of a specific restriction or the deletion of a particular clause, an amendment may make sense. That being said, I do not offer amendments for the following reasons:
Please contact me today to request an update proposal.
- Amendments force boards, owners, managers, lenders, insurers, and others to track which provisions are legally effective across multiple documents, e.g., "Section 3.2 is replaced in full, the first sentence of Section 3.3 is replaced, Sections 3.4 through 3.15 remain unchanged, the second sentence of Section 3.16 is replaced, Article 4 is replaced, etc." Confused? And that's leaving aside documents that are subject to multiple amendments, one of which is always lost.
- Adopting a CC&R, bylaw, or article amendment typically requires the expense and effort of a secret ballot vote. A CC&R amendment also require the expense and effort of recordation. Most communities find adopting all-new CC&Rs and bylaws a better use of that time and money.
- Senate Bill 323 ("SB 323") and Assembly Bill 3182 ("AB 3182") require associations to perform certain updates in relation to their election and rental restriction provisions, respectively. Adopting an amendment without addressing these issues is an open invitation to liability, including penalties of up to $1,000. If such changes are included, however, the amendment will necessarily be so extensive and complex as to fall afoul of my first point.
- My complete update fee is competitive with what most firms charge for an amendment.
Please contact me today to request an update proposal.
24. Can you update our CC&Rs but not our bylaws, or vice versa?
I do not offer stand-alone CC&Rs or bylaws for the following reasons:
Please contact me today to request an update proposal.
- As discussed in the previous question, adopting new CC&Rs or bylaws typically requires the expense and effort of a secret ballot vote. New CC&Rs also require the expense and effort of recordation. Most communities find adopting all-new CC&Rs and bylaws a better use of that time and money.
- CC&Rs and bylaws are typically drafted to operate in relation to each other. Terms and phrases defined in one document are often used in the other. Unless both documents were drafted quite recently, both are likely to contain legally and practically obsolete provisions. It is often difficult if not impossible to draft a legally-current stand-alone companion to an obsolete or otherwise flawed document.
- In an ideal world, CC&Rs would address issues related to the CID (real property) and bylaws would address issues related to the HOA (corporate governance). Unfortunately, we live in the real world, where many CC&Rs contain corporate governance provisions and vice versa. It is often difficult if not impossible to draft a legally-current stand-alone document when its companion contains competing, legally-obsolete provisions.
- As discussed in the previous question, Senate Bill 323 ("SB 323") and Assembly Bill 3182 ("AB 3182") require associations to perform certain updates in relation to their election and rental restriction provisions, respectively. Typically, election provisions are contained in the bylaws, and rental restrictions in the CC&Rs. Amending one document without addressing these issues in its companion is an open invitation to liability, including civil penalties of up to $1,000.
- My complete update fee - which includes new CC&Rs and bylaws - is competitive with if not lower than what most firms charge for one document.
Please contact me today to request an update proposal.
25. Can you update our governing documents on a line-by-line basis ("redlining")?
Redlining is the process of updating existing governing documents on a line-by-line basis using strikethroughs and red text. I do not offer redlining for the following reasons:
Please contact me today to request an update proposal.
- Redlining is a hugely time-consuming and frustrating task, and may in fact be impossible in the case of documents drafted by an attorney without common interest expertise or an interest in the long-term success of your community. The latter is always the case with developer-drafted documents.
- Even when possible, redlined documents are visually painful to read, thus difficult to use, and thus an invitation to confusion, conflict, and potential liability. Sure, you can redline VCR instructions from 1985 to act as a TiVo manual, but you'll have to strike 95% of the document. What's the point?
- My complete update fee is far less than what any firm - including mine - would charge for redlining.
Please contact me today to request an update proposal.
26. Our community is strongly divided over a particular issue. Should we attempt to resolve it via an update?
Communities facing divisive issues often struggle with the decision of whether to attempt to resolve them through their update. On the one hand, the update represents an investment of time, effort, and capital, and is designed in part to resolve outstanding issues. On the other, attempting to use the update to address the issue may cause the members to reject the project as a whole.
Boards facing divisive issues should not lose heart. In my experience, taking proactive, engaged steps can help resolve contentious issues, or at least lower their temperature. Such steps could include town halls, mailings, and newsletter articles. As with civic politics, simply providing a forum for open, transparent discussion and debate can lead to resolution, especially when issues are discussed face to face. If boards do take this step, they should of course ensure that all members are afforded equal rights to speak, including through use of the common area and association media.
If such steps are not successful and your community remains divided, the issue can be separated from the update process and addressed at a later date, e.g., via a later addition of a new assessment allocation to your updated CC&Rs. Such bifurcation permits your community to enjoy the benefits of new governing documents without being held hostage by a single hot-button issue.
Please contact me today to request an update proposal.
Boards facing divisive issues should not lose heart. In my experience, taking proactive, engaged steps can help resolve contentious issues, or at least lower their temperature. Such steps could include town halls, mailings, and newsletter articles. As with civic politics, simply providing a forum for open, transparent discussion and debate can lead to resolution, especially when issues are discussed face to face. If boards do take this step, they should of course ensure that all members are afforded equal rights to speak, including through use of the common area and association media.
If such steps are not successful and your community remains divided, the issue can be separated from the update process and addressed at a later date, e.g., via a later addition of a new assessment allocation to your updated CC&Rs. Such bifurcation permits your community to enjoy the benefits of new governing documents without being held hostage by a single hot-button issue.
Please contact me today to request an update proposal.
27. Our community struggles with voter apathy. How can we get more members to return their ballots?
Most common interest communities struggle with voter apathy. Even achieving quorum can be a challenge. As with divisive issues, however, boards facing apparent member apathy should not lose heart.
Perhaps the most important step is to ensure that the members understand the purpose of the update and are clearly informed as to the benefits of voting yes. As discussed in question 22, my update service includes a concise member cover letter and summaries of your new CC&Rs and bylaws. These documents explain the purpose of the update, which is to ensure that your community's operating instructions reflect California's greatly expanded legal protections for homeowners - in other words, that the update is not a "power grab" by the board. They also clearly connect the update with the financial and practical benefits discussed in question 11. In my experience, these simple, clear explanations often dramatically reduce apathy and increase support.
In addition to the above communications, boards can and should take proactive steps during the pre-vote and voting process to ensure more ballots are returned, such as by going door to door, holding town halls, and providing informational mailings. Some creative boards have even resorted to treating returned ballots as raffle entries for small, non-cash prizes or as tickets to post-vote BBQs. If boards do take this step, they should of course ensure that all members are afforded equal rights to speak, including through use of the common area and association media.
Voter apathy is often more problematic than divisive issues. Between the demands of modern life, the work of reviewing updated governing documents, and the unfortunate perception that associations have questionable intentions, many members ignore their ballots or choose to not vote. Yet by clearly and succinctly reminding members that they are members of the association, stakeholders in their community's success, and may stand to personally benefit from adopting new documents, most communities successfully overcome apathy.
Your new documents will be drafted to minimize the apathy problem. Through all-mailed voting, the elimination of quorum for director elections, and the elimination of supermajority amendment-approval requirements, many communities find the process of obtaining member approval far easier after an update.
Please contact me today to request an update proposal.
Perhaps the most important step is to ensure that the members understand the purpose of the update and are clearly informed as to the benefits of voting yes. As discussed in question 22, my update service includes a concise member cover letter and summaries of your new CC&Rs and bylaws. These documents explain the purpose of the update, which is to ensure that your community's operating instructions reflect California's greatly expanded legal protections for homeowners - in other words, that the update is not a "power grab" by the board. They also clearly connect the update with the financial and practical benefits discussed in question 11. In my experience, these simple, clear explanations often dramatically reduce apathy and increase support.
In addition to the above communications, boards can and should take proactive steps during the pre-vote and voting process to ensure more ballots are returned, such as by going door to door, holding town halls, and providing informational mailings. Some creative boards have even resorted to treating returned ballots as raffle entries for small, non-cash prizes or as tickets to post-vote BBQs. If boards do take this step, they should of course ensure that all members are afforded equal rights to speak, including through use of the common area and association media.
Voter apathy is often more problematic than divisive issues. Between the demands of modern life, the work of reviewing updated governing documents, and the unfortunate perception that associations have questionable intentions, many members ignore their ballots or choose to not vote. Yet by clearly and succinctly reminding members that they are members of the association, stakeholders in their community's success, and may stand to personally benefit from adopting new documents, most communities successfully overcome apathy.
Your new documents will be drafted to minimize the apathy problem. Through all-mailed voting, the elimination of quorum for director elections, and the elimination of supermajority amendment-approval requirements, many communities find the process of obtaining member approval far easier after an update.
Please contact me today to request an update proposal.
28. Our CC&Rs require our first mortgagees to approve updates. How do we address this?
Many newer CC&Rs contain provisions requiring the approval of first mortgagees in order to carry out certain amendments. These provisions are based on guidelines published by Fannie Mae and Freddie Mac relating to the eligibility of residential mortgages to be sold by lending institutions in the secondary mortgage markets. The types of amendments requiring first mortgagee approval are ostensibly those that could adversely affect the security interest of mortgagees, such as termination of common interest status, but are typically drafted so broadly that they cover most if not all of the provisions contained in the CC&Rs.
The issue of first mortgagee update approval is complex. If required, an association may be required to perform a costly title search to ascertain the identity of each mortgagee. Even if identified and solicited, most fail or refuse to respond.
Fortunately, some CC&Rs provide that first mortgagee approval may be limited to those lenders who have provided written notice to the association. As this rarely occurs, the mortgagee approval requirements of such CC&Rs are typically moot. Others condition approval on changes unaffected by the update, or on provisions which may be restated in lieu of amending.
Given the expense and effort of seeking first mortgagee approval, I typically attempt to avoid the necessity of doing so. This can be accomplished in a variety of ways, including by restating provisions that would otherwise require mortgagee approval to amend. Frankly, it is difficult to imagine a lender objecting to changes which largely reflect binding current law and which will likely enhance the attractiveness, desirability, and stability of their security interest. Nevertheless, given the provisions of Civil Code section 4270(a), if such approval is required, it generally must be sought. For communities whose CC&Rs do require first mortgagee approval, I assist with the process, including providing a cover letter than may be mailed with the drafts. Fortunately, the law permits deeming lenders' failure to respond as approval.
Communities whose CC&Rs contain first mortgagee approval requirements can typically proceed with an update without hindrance. Please contact me today to request an update proposal.
The issue of first mortgagee update approval is complex. If required, an association may be required to perform a costly title search to ascertain the identity of each mortgagee. Even if identified and solicited, most fail or refuse to respond.
Fortunately, some CC&Rs provide that first mortgagee approval may be limited to those lenders who have provided written notice to the association. As this rarely occurs, the mortgagee approval requirements of such CC&Rs are typically moot. Others condition approval on changes unaffected by the update, or on provisions which may be restated in lieu of amending.
Given the expense and effort of seeking first mortgagee approval, I typically attempt to avoid the necessity of doing so. This can be accomplished in a variety of ways, including by restating provisions that would otherwise require mortgagee approval to amend. Frankly, it is difficult to imagine a lender objecting to changes which largely reflect binding current law and which will likely enhance the attractiveness, desirability, and stability of their security interest. Nevertheless, given the provisions of Civil Code section 4270(a), if such approval is required, it generally must be sought. For communities whose CC&Rs do require first mortgagee approval, I assist with the process, including providing a cover letter than may be mailed with the drafts. Fortunately, the law permits deeming lenders' failure to respond as approval.
Communities whose CC&Rs contain first mortgagee approval requirements can typically proceed with an update without hindrance. Please contact me today to request an update proposal.
29. Our CC&Rs require other third parties to approve updates, such as our city, developer, or neighbor. How do we address this?
Some CC&Rs require other third parties to approve updates. Under Civil Code section 4270(a), such approval must generally be sought and obtained in order for your update to be valid.
Obtaining third-party approval depends, of course, on who the third party is and what changes are sought. Developer-drafted documents often require developer approval for certain amendments. Such approval typically turns on issues regarding the marketing and sale of units or lots, board and committee control, and the ability to assert construction defect claims. Some developer-approval provisions contain self-terminating clauses. For others, the necessity of approval may be rendered moot by law or the passage of time. In reality, once the period for asserting construction defect claims ends, developers have little practical or economic interest in what changes a community carries out.
For municipalities, adjoining landowners, and other third parties, the amendment-approval provisions typically involve use restrictions and maintenance requirements imposed as conditions of approval during the development process. As with the members, clearly explaining that the update will not cause detrimental impacts (as is typically the case) and may in fact bring certain benefits generally works to garner approval. For those parties who fail to respond to a written request for approval, such failure may generally be deemed an approval after a certain period of time.
Accordingly, communities whose CC&Rs contain third party approval requirements can typically proceed with an update without hindrance. Please contact me today to request an update proposal.
Obtaining third-party approval depends, of course, on who the third party is and what changes are sought. Developer-drafted documents often require developer approval for certain amendments. Such approval typically turns on issues regarding the marketing and sale of units or lots, board and committee control, and the ability to assert construction defect claims. Some developer-approval provisions contain self-terminating clauses. For others, the necessity of approval may be rendered moot by law or the passage of time. In reality, once the period for asserting construction defect claims ends, developers have little practical or economic interest in what changes a community carries out.
For municipalities, adjoining landowners, and other third parties, the amendment-approval provisions typically involve use restrictions and maintenance requirements imposed as conditions of approval during the development process. As with the members, clearly explaining that the update will not cause detrimental impacts (as is typically the case) and may in fact bring certain benefits generally works to garner approval. For those parties who fail to respond to a written request for approval, such failure may generally be deemed an approval after a certain period of time.
Accordingly, communities whose CC&Rs contain third party approval requirements can typically proceed with an update without hindrance. Please contact me today to request an update proposal.
30. Our CC&Rs impose additional requirements on updates, such as sign-off by all members. How do we address this?
Some CC&Rs impose additional conditions on updates, such as a requirement that the association obtain the notarized signatures of all consenting members or that amendments only be carried out on specific dates.
Under Civil Code section 4270(a), in order to validly amend CC&Rs, associations are only required to obtain the approval of the required percentage of members and any required third parties, execute a certificate by the association's officers that such approval was obtained, and record the CC&Rs in each county in which the community is located. Any other conditions on amendments may typically be disregarded.
Please contact me today to request an update proposal.
Under Civil Code section 4270(a), in order to validly amend CC&Rs, associations are only required to obtain the approval of the required percentage of members and any required third parties, execute a certificate by the association's officers that such approval was obtained, and record the CC&Rs in each county in which the community is located. Any other conditions on amendments may typically be disregarded.
Please contact me today to request an update proposal.
31. Our CC&Rs self-terminate after a fixed term. The end of that term is approaching, yet our CC&Rs do not provide for automatic extensions. How do we address this?
Some CC&Rs contain provisions providing they terminate after a fixed term. Unfortunately, such CC&Rs also frequently fail to contain provisions automatically extending that term. This is problematic, as the termination of a community's CC&Rs can act to terminate its common interest status.
Under Civil Code section 4265, communities facing this problem may vote to extend their CC&Rs' terms if the vote is conducted before the stated termination date and the extension is approved by either the percentage of affirmative votes required by the CC&Rs' amendment provisions, or if the CC&Rs do not contain amendment provisions, by the affirmative vote a of a majority of all members. Although Section 4265 expressly prohibits single extensions that are longer than the initial term of the CC&Rs or 20 years, whichever is less, multiple extensions may be sought.
That being said, most CC&R termination periods are quite long, e.g., 30, 50, or even 60 years. If your termination date is approaching, it is likely that your CC&Rs and other governing documents are legally and practically obsolete as well. Given my update fee, which is competitive with what most firms charge to perform a Section 4265 extension, an update is almost always a better value. This is particularly true for communities whose documents are over 10 years old or otherwise meet the factors discussed in question 12.
Please contact me today to request an update proposal.
Under Civil Code section 4265, communities facing this problem may vote to extend their CC&Rs' terms if the vote is conducted before the stated termination date and the extension is approved by either the percentage of affirmative votes required by the CC&Rs' amendment provisions, or if the CC&Rs do not contain amendment provisions, by the affirmative vote a of a majority of all members. Although Section 4265 expressly prohibits single extensions that are longer than the initial term of the CC&Rs or 20 years, whichever is less, multiple extensions may be sought.
That being said, most CC&R termination periods are quite long, e.g., 30, 50, or even 60 years. If your termination date is approaching, it is likely that your CC&Rs and other governing documents are legally and practically obsolete as well. Given my update fee, which is competitive with what most firms charge to perform a Section 4265 extension, an update is almost always a better value. This is particularly true for communities whose documents are over 10 years old or otherwise meet the factors discussed in question 12.
Please contact me today to request an update proposal.
32. Our CC&Rs do not contain amendment provisions. How do we address this?
Some CC&Rs do not contain provisions specifying how they may be amended. Under such circumstances, the law nevertheless permits communities to pursue an update.
Under Civil Code section 4260, documents that lack amendment provisions may be amended at any time, as long as the requirements for approval and recordation specified in Civil Code section 4270(a) are satisfied (see question 30). In lieu of specified member approval requirements, Civil Code section 4270(b) provides that the association must obtain the approval of a majority of all members.
Please contact me today to request an update proposal.
Under Civil Code section 4260, documents that lack amendment provisions may be amended at any time, as long as the requirements for approval and recordation specified in Civil Code section 4270(a) are satisfied (see question 30). In lieu of specified member approval requirements, Civil Code section 4270(b) provides that the association must obtain the approval of a majority of all members.
Please contact me today to request an update proposal.
33. Section 4230 of the Davis-Stirling Act permits boards to delete certain developer-oriented provisions from their governing documents. Do you provide Section 4230 updates?
I do not provide Section 4230 updates.
Developer-drafted governing documents typically contain numerous provisions required by California’s Department of Real Estate (DRE) and imposed in favor of the developer. Such provisions exist to balance state-mandated consumer protections with the developer’s ability to complete sales and control construction defect claims. Examples include two-class voting structures, the developer’s three-to-one voting advantage, cumulative voting, complex architectural committee controls, exemptions from use restrictions, rights of entry, and complex dispute resolution provisions.
Once the developer completes its sales, and especially once the period for asserting construction defect claims has ended, such provisions typically become obsolete. Their continued presence, however, can lead to confusion, conflict, and costly liability, and can reduce member and resident acceptance of association governance.
Under Civil Code section 4230, after developers have completed the construction of a development, have terminated construction activities, and have terminated marketing activities for the sale, lease, or other disposition of the separate interests, boards may amend their governing documents to delete any provisions which are “unequivocally designed and intended, or which by [their] nature can only have been designed and intended,” to facilitate the developer in completing the construction or marketing of the development.
Such deletions, however, are limited to those which “provide for access by the developer over or across the common area for the purposes of (1) completion of construction of the development, and (2) the erection, construction, or maintenance of structures or other facilities designed to facilitate the completion of construction or marketing of separate interests.”
Although a developer which has completed construction and sale activities is unlikely to object to a governing document update, especially once the period for asserting construction defect claims ends, Section 4230's dramatic limitations on what provisions may be deleted render the process essentially useless. Furthermore, Section 4230 does not permit unilateral changes. Boards must first obtain the approval of a majority of a quorum of the members via the secret ballot process and must undertake certain pre-vote disclosures. Finally, communities whose documents contain obsolete developer provisions are typically legally and practically obsolete in other ways as well.
Given my update fee, which is competitive with what most firms charge to provide a Section 4230 amendment, an update is almost always a better value. This is particularly true for communities whose documents are over 10 years old or otherwise meet the factors discussed in question 12. An update both eliminates all obsolete developer provisions and ensures your documents reflect current law, modern common interest best practices, and the evolved practical needs of your community.
Please contact me today to request an update proposal.
Developer-drafted governing documents typically contain numerous provisions required by California’s Department of Real Estate (DRE) and imposed in favor of the developer. Such provisions exist to balance state-mandated consumer protections with the developer’s ability to complete sales and control construction defect claims. Examples include two-class voting structures, the developer’s three-to-one voting advantage, cumulative voting, complex architectural committee controls, exemptions from use restrictions, rights of entry, and complex dispute resolution provisions.
Once the developer completes its sales, and especially once the period for asserting construction defect claims has ended, such provisions typically become obsolete. Their continued presence, however, can lead to confusion, conflict, and costly liability, and can reduce member and resident acceptance of association governance.
Under Civil Code section 4230, after developers have completed the construction of a development, have terminated construction activities, and have terminated marketing activities for the sale, lease, or other disposition of the separate interests, boards may amend their governing documents to delete any provisions which are “unequivocally designed and intended, or which by [their] nature can only have been designed and intended,” to facilitate the developer in completing the construction or marketing of the development.
Such deletions, however, are limited to those which “provide for access by the developer over or across the common area for the purposes of (1) completion of construction of the development, and (2) the erection, construction, or maintenance of structures or other facilities designed to facilitate the completion of construction or marketing of separate interests.”
Although a developer which has completed construction and sale activities is unlikely to object to a governing document update, especially once the period for asserting construction defect claims ends, Section 4230's dramatic limitations on what provisions may be deleted render the process essentially useless. Furthermore, Section 4230 does not permit unilateral changes. Boards must first obtain the approval of a majority of a quorum of the members via the secret ballot process and must undertake certain pre-vote disclosures. Finally, communities whose documents contain obsolete developer provisions are typically legally and practically obsolete in other ways as well.
Given my update fee, which is competitive with what most firms charge to provide a Section 4230 amendment, an update is almost always a better value. This is particularly true for communities whose documents are over 10 years old or otherwise meet the factors discussed in question 12. An update both eliminates all obsolete developer provisions and ensures your documents reflect current law, modern common interest best practices, and the evolved practical needs of your community.
Please contact me today to request an update proposal.
34. Section 6608 of the Commercial Act permits commercial and industrial boards to do the same thing. Do you provide Section 6608 updates?
Section 6608 of the Commercial Act is essentially identical to Section 4230 of the Davis-Stirling Act. I do not provide Section 6608 updates for the same reasons discussed in question 33, above.
Please contact me today to request an update proposal.
Please contact me today to request an update proposal.
35. Section 4235 of the Davis-Stirling Act permits boards to update obsolete statutory references in their governing documents. Do you provide Section 4235 updates?
I do not provide Section 4235 updates.
Under Civil Code section 4235, if a community's governing documents contain references to provisions of the Davis-Stirling Act that were repealed and continued in the 2014 renumbering of the Act, the board may amend its governing documents solely to correct the obsolete statutory references without seeking member approval.
Unfortunately, Section 4235 is of limited value because it “solely” permits amendments to "correct ... cross-reference[s]." This is problematic for several reasons. First, the 2014 renumbering introduced several substantive changes to the Davis-Stirling Act, including new definitions of notice and new disclosure requirements. Under Section 4235, however, such changes may not be included in the amendment, as they do not constitute a statutory "cross-reference." Second, unless your community’s governing documents were drafted shortly before 2014, they are likely legally and practically obsolete in other ways as well. Finally, a Section 4235 update will not permit your association to carry out practical changes to reflect your community's evolved management and governance needs or to adopt modern common interest best practices.
Section 4235's shortcomings aside, one of the primary purposes of governing documents is to translate the law into plain-English operating instructions. Referring readers back to the law does not help that purpose. Indeed, it increases the chance for confusion, conflict, and costly liability, as most readers are not attorneys and do not have the experience to properly interpret code sections.
Given my update fee, which is competitive with what most firms charge to provide a Section 4235 amendment, an update is almost always a better value. This is particularly true for communities whose documents are over 10 years old or otherwise meet the factors discussed in question 12. An update both corrects all obsolete statutory references and ensures your documents reflect current law, modern common interest best practices, and the evolved practical needs of your community.
Please contact me today to request an update proposal.
Under Civil Code section 4235, if a community's governing documents contain references to provisions of the Davis-Stirling Act that were repealed and continued in the 2014 renumbering of the Act, the board may amend its governing documents solely to correct the obsolete statutory references without seeking member approval.
Unfortunately, Section 4235 is of limited value because it “solely” permits amendments to "correct ... cross-reference[s]." This is problematic for several reasons. First, the 2014 renumbering introduced several substantive changes to the Davis-Stirling Act, including new definitions of notice and new disclosure requirements. Under Section 4235, however, such changes may not be included in the amendment, as they do not constitute a statutory "cross-reference." Second, unless your community’s governing documents were drafted shortly before 2014, they are likely legally and practically obsolete in other ways as well. Finally, a Section 4235 update will not permit your association to carry out practical changes to reflect your community's evolved management and governance needs or to adopt modern common interest best practices.
Section 4235's shortcomings aside, one of the primary purposes of governing documents is to translate the law into plain-English operating instructions. Referring readers back to the law does not help that purpose. Indeed, it increases the chance for confusion, conflict, and costly liability, as most readers are not attorneys and do not have the experience to properly interpret code sections.
Given my update fee, which is competitive with what most firms charge to provide a Section 4235 amendment, an update is almost always a better value. This is particularly true for communities whose documents are over 10 years old or otherwise meet the factors discussed in question 12. An update both corrects all obsolete statutory references and ensures your documents reflect current law, modern common interest best practices, and the evolved practical needs of your community.
Please contact me today to request an update proposal.
36. Section 6610 of the Commercial Act permits commercial and industrial boards to do the same thing. Do you provide Section 6610 updates?
Section 6610 of the Commercial Act is essentially identical to Section 4235 of the Davis-Stirling Act. I do not provide Section 6610 updates for the same reasons discussed in question 35, above.
Please contact me today to request an update proposal.
Please contact me today to request an update proposal.
37. We're working with another lawyer on a separate issue. Can we still retain your services to perform an update?
Yes. My services may be performed regardless of unrelated work performed by other attorneys. However, I generally advise that boards permit counsel to confer and coordinate their efforts, as many aspects of the update process can affect other legal issues.
Please contact me today to request an update proposal.
Please contact me today to request an update proposal.
38. Do you provide general counsel services, such as legal opinions, contract review, or dispute resolution?
Yes and no. No in that I do not provide stand-alone general counsel services. Yes in that the update process typically involves resolving outstanding legal issues caused by obsolete governing documents, such as poorly-drafted use restrictions, incomplete maintenance requirements, or unfair assessment allocations. In addition, I am typically happy to represent retained associations in unrelated general counsel matters, if reasonably within the scope of transactional common interest practice.
Please contact me today to request an update proposal.
Please contact me today to request an update proposal.
39. Do you represent associations in construction defect litigation?
No. If you have questions or concerns regarding potential defects in the design or construction of your community, you should promptly consult with an experienced construction defect attorney, as the time for bringing such claims is limited by law.
Please contact me today to request an update proposal.
Please contact me today to request an update proposal.
40. Do you represent associations located outside California?
No.
41. Do you represent individual home or business owners?
No.
42. Do you represent management companies or other third parties?
No.
43. Do you represent trash pandas?