CC&Rs, Bylaws & Amendments

In 1986, California implemented the Davis-Stirling Act, a series of California statutes governing homeowners associations. The Act is constantly being amended, which leads to conflicts with existing CC&Rs. So older CC&Rs, especially those drafted before 1986, are outdated, and many of their provisions are superseded by statute.

Starting in 2006, multiple changes to existing law have also altered drastically the way associations function as a corporation (i.e. meetings, voting, elections, etc.). Therefore, any Bylaws drafted before 2006 are also outdated and conflict with existing law.

Having CC&Rs or Bylaws which conflict with statute can lead to disputes over which requirements prevail, those in the Association's documents or those found in California statute. It also means that the Board cannot use the CC&Rs or Bylaws as a reference on how to properly run their association.

New CC&Rs can be drafted that are easier to read (without legalese), that are better organized, and that cover areas neglected in older sets. Some examples of improvements that can be made to the CC&Rs and Bylaws are:

• Add details on maintenance and repair responsibilities, such as balcony or patio waterproofing, electrical wiring or pipes within walls servicing only one unit in a condominium, and responsibility for damage inside a unit from a failure of the common area elements where the Association was not negligent (such as an unexpected leak).

• Delete the cumulative voting requirement. Under cumulative voting, as an example, when five directors are elected each owner has five votes. If the owner chooses, he or she can place all five votes on one person. Without cumulative voting, the owners cannot place more than one vote on any candidate. This keeps someone with a minority position from being elected by a very small percentage of the owners.

• Add rental restrictions.

• Add Board qualifications to Bylaws. For example, directors should be homeowners, and they should be current in payment of assessments. You can also disqualify individuals involved in a lawsuit against the Association from serving on the Board while the lawsuit is pending, and only allow one homeowner per household to serve on the Board at a time.

If only a few changes need to be made to bring your documents current or to add restrictions that will be important to the association's functioning, then amending only those provisions make sense. However, to match your documents to current law, it is more efficient to rewrite the entire document and prepare restated CC&Rs or Bylaws.