Ordinarily, CC&Rs and bylaws can only be amended by a vote of the HOA membership. However, there are some narrow circumstances under the Davis-Stirling Common Interest Development Act in which boards are empowered by statute to make certain limited amendments to CC&Rs or bylaws without a membership vote.
Illegal discriminatory language
Unfortunately, many HOAs have governing documents containing illegal discrimination.
Provisions discriminating against race, or sex, children (except senior communities, which can ban children), or other classes listed in Government Code 12955 must be removed by boards pursuant to Civil Code 4225.
Older CC&Rs sometimes still contain racial restrictions, and some association documents from as recently as the 1970’s or 80’s will occasionally have illegal restrictions against children.
This removal of discriminatory language is not optional because Civil Code Section 4255(b) makes it mandatory.
If a homeowner brings such illegal language to the board’s attention and the board does not remove the discriminatory language, the state Civil Rights Department (formerly the Department of Fair Employment and Housing), city, county, or any person may under Civil Code Section 4225(d) sue the HOA to compel such amendments.
Developer construction and marketing provisions
Many governing documents (typically CC&Rs) contain language protecting the developer’s ability to complete the construction and to market the remaining unsold homes in the project.
Such provisions often provide for builder access to the site, and authorize a sales office in common area, for example.
After developer construction and marketing has concluded, Civil Code Section 4230 allows boards to remove such provisions from the governing documents. However, a very confusing subpart “d” to the statute seems to still require a membership vote, with any owners owning more than two units excluded from the definition of “quorum” for this specific vote.
Outdated statute references
In 2014, the Davis-Stirling Act was relocated, reorganized and amended in many ways, so pre-2014 CC&Rs and bylaws contain outdated and incorrect Civil Code references.
Civil Code Section 4235 allows boards to amend and update the statute references in the CC&Rs and bylaws to match the new statute numbers.
Illegal rental restrictions
Civil Code Section 4741, effective in 2021, bans “unreasonable” restrictions against rentals and directs HOAs to remove such restrictions from their governing documents.
To facilitate that, subpart “f” of the statute allowed a small six-month window – from Jan. 1, 2022 through July 1, 2022 – to amend CC&Rs to remove “unreasonable” rental restrictions. Now that this window has long ago closed, removal of illegal rental restrictions will require a membership vote.
Boards should always seek assistance from qualified legal counsel before considering amendments by the board to the HOA CC&Rs or Bylaws. Your legal counsel can help ensure that the amendment qualifies for one of the three available exceptions to the membership vote requirement, and can help draft the amendment.
Also remember that any of these amendments must be approved in an open board meeting with the normal Open Meeting Act agenda announcement to the members. CC&R amendments, once approved, must be “recorded,” meaning filed with the County Registrar-Recorder. Bylaw amendments need not be recorded but should be sent to the members as soon as possible after approval.
CC&Rs address the property and bylaws address how the HOA governs. The official website for California laws is leginfo.legislature.ca.gov.
Richardson, Esq. is a fellow of the College of Community Association Lawyers and partner of Richardson Ober LLP, a California law firm known for community association advice. Submit column questions to kelly@roattorneys.com.