HOA Homefront: RULES part 2

from House & Home: September 04, 2022

Plumber: Opening up a closed-in bathroom

RULES part 2

By Kelly G. Richardson, Esq. CCAL

Reasonable Rules Aren’t Automatic Establish Standards for HOA Meetings With Meeting Rules

One important board responsibility is to adopt and enforce community rules. Developers provide CC&Rs and Bylaws (usually fairly boilerplate) when creating HOAs but do not typically create operating rules. So, it is up to volunteer boards to create necessary and reasonable rules for their communities.

Rules can cover many important topics, including usage of parking, pool, gym, or community room, or architectural and landscaping standards. Rules should be tailored to the needs of the community, but there are five topics that (per Civil Code) must be covered. These required rules must address: internal dispute resolution, elections, delinquency enforcement, architectural modification application processing, and a schedule of fines. [Discussed in last week’s column].

Rules must be written, per Civil Code Section 4350(a). From time-to-time associations will describe to me “house rules” but have nothing documenting the house rule. Unwritten rules are traditions, not “rules,” and are unenforceable. Also, rules must be adopted using the process in Civil Code 4360.

Keep the rules simple. Draft rules in straight forward language. Rules should be clear and concise. Avoid overly complex rules, because most likely the manager, board, and homeowners alike will not remember all the technicalities in a complicated ruleset.

Stay positive. Consider starting each rule section with a positive introductory statement. Beginning a section of rules with a short explanation about the purpose of the rules makes a more positive statement to the community, and hopefully increases community compliance and cooperation. People object to being told “because I said so,” regardless of age, and explaining the importance of the rules shows respect.

No kid rules. Avoid separate rules for children. Rules singlingthem out for different treatment violate Fair Housing laws, except in senior communities. Someday perhaps, the law will allow reasonable safety standards for children; but presently, it does not. So, for example, do not ban children skateboarding in hallways — instead ban all skateboarding in hallways.

Some broad terms are acceptable. It is unnecessary to try to define every possible issue or manner of non-neighborly behavior. It’s OK for rules to use words such as “reasonable” and “nuisance.”

Legal review. Before announcing a proposed rule change to the members, send it to the association attorney for a brief review. Attorneys are trained to draft and edit documents and may spot legal problems with a proposed rule.

Check the other governing docu-

ments. Make sure the rules are consistent with the CC&Rs and bylaws. Per Civil Code Section 4205, rules may not contradict the bylaws and CC&Rs. However, if something in the CC&Rs or bylaws violates current law, the rules can still follow the law.

Ready to enforce? When considering a proposed new rule, confirm it is something the board is able and willing to enforce. It is better not to have a rule than to have one which is not enforced.

Fines. When establishing or updating the association schedule of fines, remember that the same fine amount may not work for all rule violations. Also, fines should deter but not be punitive.

Opposition? If at the board meeting to adopt a rule change, a significant number of members in open forum oppose the rule, consider restarting the process and revisiting the idea in light of member input.

Successful communities adopt and consistently enforce necessary, clear, and reasonable rules.

Along with the property’s overall condition, another positive initial impression upon new members can be board meetings which are effective, positive, and orderly. However, how does a new owner or director learn how board meetings are to be conducted? The law does not require associations to have meeting rules, but such rules can be extremely helpful in guiding attendees and directors. Much of the rules may be derived from statutes (Open Meeting Act, Civil Code 49004955) but good meeting rules can add further important guidance.

Topics in meeting rules could include:

Who can attend board meetings? Under the Open Meeting Act, only members have the right to attendopen meetings - but what about tenants, non-owner spouses, attorneys, owners’ children, or service providers? The rulescan reaffirm that only members can attend, or could state if anyone else can attend.

What is the order of business the HOA board usually follows? A model agenda can be included in the rules to inform HOA members about the order in which things happen in board meetings.

How is open forum handled? Is it at the beginning or the end of meetings? Can the board vote to have a special open forum on a limited issue during the meeting? What is the time limit on owner remarks? Reasonable guidelines on open forum will be helpful.

What behavior is not permitted in board meetings? Rules should contain clear boundaries of behavior - boundaries which no reasonable person would dispute. Meeting rules should spell out what is not allowed and thereby promote reasonable behavior during board meetings.

If someone disrupts the meeting, what does the board do? There is nothing more unfair to the board and the attending owners than when one or more owners hijack a meeting with obstreperous behavior. I have attended meetings in which the goal of the disruptors was clearly to try to force the board to adjourn and prevent the board from deciding certain issues on the agenda. This is reprehensible behavior which should not be condoned. Rules should include an escalation of response to disruption. The escalation should start with a warning from the chair, followed by a motion of the board of censure (asking the owner to quiet down), followed by a motion to eject the offending owner from the meeting. It is not fair to anyone to allow bullies to stymie the board from handling the association’s business.

If the homeowner is called to a hearing, what will happen? So often I attend disciplinary hearings or reimbursement hearings in which the HOA member called to the hearing is simply lost, not knowing what is expected from them or how to proceed. Meeting rules can explain how disciplinary and common area damage reimbursement hearings are conducted. This would help inform members how to prepare,resulting in better and fairer hearings.

What happens in closed sessions, which homeowners often see as mysterious? Why not include in the rules an explanation of what the law allows boards to address in closed sessions – and such rules may remind the board as well.

Meeting conduct rules can be a very positive statement about what a community values. Take some time, consult association legal counsel, and create and adopt some clear and reasonable association meeting rules.

Kelly G. Richardson, Esq. is a Fellow of the College of Community Association Lawyers andPartnerof Richardson Ober DeNichilo LLP, a law firm known for community association advice. Submit questions to Kelly@rodllp.com. Past columns at www.HOAHomefront.com. All rights reserved® .

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HOA Homefront: RULES part 2

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RULES part 2

Reasonable Rules Aren’t Automatic Establish Standards for HOA Meetings With Meeting Rules

Check the other governing docu-

Topics in meeting rules could include:

Kelly G. Richardson, Esq. is a Fellow of the College of Community Association Lawyers andPartnerof Richardson Ober DeNichilo LLP, a law firm known for community association advice. Submit questions to Kelly@rodllp.com. Past columns at www.HOAHomefront.com. All rights reserved® .

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House & Home: September 04, 2022