HOA Law Blog
Did you Know?
By Leena Danpour, Esq.
The 28-day membership comment period is not required for all proposed rule changes. Yes, you heard it here.
Pursuant to Civil Code section 4360, Boards of Directors must provide written notice to the membership of proposed rule changes and provide twenty-eight (28) days for the membership to review the proposed rule change. A decision of a proposed rule change shall be made at a general session Board meeting, only after consideration of any comments made by association members.
The 28-day comment period only applies to an operating rule that relates to one or more of the following subjects:
1. Use of the common area or of an exclusive use common area.
2. Use of a separate interest, including any aesthetic or architectural standards that govern alteration of a separate interest.
3. Member discipline, including any schedule of monetary penalties for violation of the governing documents and any procedure for the imposition of penalties.
4. Any standards for delinquent assessment payment plans.
5. Any procedures adopted by the association for resolution of disputes.
6. Any procedures for reviewing and approving or disapproving a proposed physical change to a member’s separate interest or to the common area.
7. Procedures for elections.
The 28-day comment period does not apply to the following actions by Boards of Directors:
1. A decision regarding maintenance of the common area.
2. A decision on a specific matter that is not intended to apply generally.
3. A decision setting the amount of a regular or special assessment.
4. A rule change that is required by law, if the board has no discretion as to the substantive effect of the rule change.
5. Issuance of a document that merely repeats existing law or the governing documents.
For example, the 28-day membership comment period is required when an association’s Board of Directors wants to adopt new Election Rules that outline the procedural steps of an Election. The 28-day membership comment period also applies to the adoption of Solar Energy Systems because this rule outlines the installation, modification, and/or removal of the Solar Energy System within areas of an Association’s common area or exclusive use area and may have an impact on the use of a separate interest.
In contrast, the 28-day comment period would not apply to a Service Animal and Support Animal Policy or an Anti-Discrimination Policy that merely repeats existing law. The 28-day comment period would also not apply if the Board of Directors intend to update general rules to remove any language that may violate the Federal Fair Housing Act, or update Leasing Rules to make them consistent with newly passed laws.
SwedelsonGottlieb has developed a specialized program called Amend!® which can give new life and new legal strength to a community association’s outdated CC&Rs and Bylaws. Amend!® enables association boards to update obsolete governing documents with changes in California law, including changes relating to elections, liens/foreclosures, solar panel installation, electric vehicle charging stations, alternative dispute resolution procedures, and authority for providing notice disclosure electronically. In addition, our documents are written in commonly used language to avoid confusing legalese, which makes them more user friendly and helps avoid confusion and disputes. If you would like more information requesting a written Amend!® proposal, please request a proposal by hitting our contact button below and attach your governing documents so that we can determine if your association is a candidate for our flat fee options. As always, feel free to give us a call at 800.372.2207 with any questions.