CC&Rs AND BYLAWS

CAN AN ASSOCIATION AMEND ITS CC&RS DESPITE NOT GETTING THE MEMBERSHIP APPROVAL REQUIREMENT SET FORTH IN THE CC&RS?

California Civil Code § 1356 permits an association to petition the Superior Court for an order reducing the percentage approval required to approve the amendment if, among other things, owners having more than 50 percent of the votes voted in favor of the amendment. The statute specifically states:

(a) If in order to amend a declaration, the declaration requires owners having more than 50 percent of the votes in the association, in a single class voting structure, or owners having more than 50 percent of the votes in more than one class in a voting structure with more than one class, to vote in favor of the amendment, the association, or any owner of a separate interest, may petition the superior court of the county in which the common interest development is located for an order reducing the percentage of the affirmative votes necessary for such an amendment. The petition shall describe the effort that has been made to solicit approval of the association members in the manner provided in the declaration, the number of affirmative and negative votes actually received, the number or percentage of affirmative notes required to effect the amendment in accordance with the existing declaration, and other matters the petitioner considers relevant to the court's determination ...

If the court determines that: (a) appropriate notice was given to the owners, (b) the balloting was conducted in accordance with the governing documents, (c) a diligent effort was made to permit all eligible members to vote, (d) owners having more than 50 percent of the votes voted in favor of the amendment, (e) the amendment is reasonable, and (f) granting the petition is not improper, then the court may confirm the amendment as being validly approved notwithstanding the requirement in the CC&Rs for a super-majority vote, i.e. 66% or 75% owner approval.

If the court grants the petition, then the court order and amendment would be recorded in the county recorder's office and copies distributed to the membership.

WHICH CONTROLS, CALIFORNIA LAW OR THE GOVERNING DOCUMENTS? IT DEPENDS. The resolution of a conflict between the governing documents and the law depends upon the intent of the governmental body that enacted the law. If the statute contains a phrase like "notwithstanding the provisions of the declaration" or "notwithstanding anything to the contrary in the governing documents" in its text, the intent to override is clear and the law controls.

For example, Civil Code § 1366(b) states:

Notwithstanding more restrictive limitations placed on the board by the governing documents, the board of directors may not impose a regular assessment that is more than 20 percent greater than the regular assessment for the association's preceding fiscal year or impose special assessments which in the aggregate exceed 5 percent of the budgeted gross expenses of the association for that fiscal year without the approval of owners,...

Therefore, under this statute, regardless whether the CC&Rs have more restrictive limitations, the board may, without the approval of the members, increase regular assessments by up to 20% and impose a special assessment that in the aggregate is not more that 5% of the association's budgeted gross expenses for the current fiscal year.

However, where the statute contains a phrase such as "unless otherwise provided in the declaration" or "subject to the provisions of the governing documents" in its text, the intent not to override is clear and the governing document provisions would control.

For instance, Civil Code § 1364(a) states:

Unless otherwise provided in the declaration of a common interest development, the association is responsible for repairing, replacing, or maintaining the common areas, other than exclusive use common areas, and the owner of each separate interest is responsible for maintaining that separate interest and any exclusive use common areas appurtenant to that separate interest.

Accordingly, unless the CC&Rs provide a different maintenance scheme, the association is responsible for the repair, replacement and maintenance of the common areas, and the owners of the separate interest are responsible for maintaining their air space condominiums and exclusive use common areas appurtenant to the unit.

However, if the statute has no clear indication of whether it is intended to supersede conflicting provisions in the governing documents, the intent must be determined from the language of the statute itself, the context of the law, case law interpretation of the statute, and legislative intent. In such a case, the association should contact its attorney.

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