HOA Homefront: 11 tips regarding amending CC&Rs

Amending CC&Rs can be difficult. Here are some tips toward enhancing amendment success.

1.  Check with the members.  Amending CC&Rs usually requires supermajority votes (i.e., more than simply a majority of the quorum), so a good idea isn’t everything – it still needs widespread support. Great proposed amendments are meaningless if the homeowners will not vote for it.

2.  Avoid controversial amendments.  Beware of amendment subjects that could be very upsetting to some members. Avoid issues where a widespread consensus cannot be achieved, such as changing assessment allocations or unpopular use restrictions.

3.  The board can pass some amendments.  Certain amendments can be approved by the board, such as deleting developer marketing provisions (Civil Section 4230), removing illegal discriminatory restrictions (Section 4235), or changing the old Civil Code references to the current (Section 4235).

4.  Get out the vote.  Many members think abstaining is OK if they don’t have time to read everything, but that hurts the amendment’s chances. Divide the community into sectors and assign each sector to volunteers.  Apathy is usually the greatest hurdle, so explain to neighbors that abstaining is functionally the same as a “no” vote.

5.  Didn’t meet the number? Don’t give up. Civil Code 4275 allows HOAs to file a court petition seeking judicial approval so long as over 50% of all members voted in favor.  These petitions really should be viewed as a last resort due to the legal, mailing, and copying cost involved.

6.  The EXACT text of the amendment must be sent out with the ballots, per Civil 5115(e) – even if it was already previously distributed.  Help members by sending TWO versions – one “redlined” showing what is being removed and what is being added, and another “final” version showing the section as it will read after amendment.  If a complete rewrite of your CC&Rs is proposed, a redlined version may be problematic because the new document may be organized differently.  Instead, consider distributing a summary of “highlights” of what will be new or different in the proposed CC&Rs.

7.  Are bylaw amendments also needed?  If possible, pursue bylaw amendments along with CC&R amendments. It takes the same work to gain membership participation.  Plus, bylaw amendments usually require less votes to approve, and if apathy strikes, a court can order them approved under Corporations Code 7515.

8.  Allow contrary viewpoints to be heard.  Normally, boards explain to members why the proposed amendment should be passed.  If some members strongly oppose the amendment, the Wittenberg v. Beachwalk case reminds us that a board cannot prevent others from expressing opposition.  If there is a significant amount of disagreement, the HOA should slow down and work toward building a consensus.

9.   Have attorneys prepare proposed amendments.  CC&Rs are a legal document. Occasionally HOAs record amendments which unknowingly violate the law or contradict another part of the CC&Rs, so the association’s attorney should be involved in the amendment process.

10. Along with the desired amendment(s), add an amendment reducing the supermajority requirement. If the HOA is putting in the major effort to achieve 75% or 67% approval, include an amendment reducing that to 51% so future amendments are more achievable.

11.  Record the amendment. Once the amendment is filed (“recorded”) with the County Recorder it automatically binds all present and future owners.

Hope this helps!

Kelly G. Richardson CCAL is partner at Richardson Ober LLP, a California law firm known for community association advice. Send potential column questions to Kelly@roattorneys.com.