2013 Legislative Update for California Community Associations

Photo-Legislative-Update-22013 Proved to be a relatively quiet year for legislation for community associations. However, that does not mean that 2014 does not bring some drastic changes.  

1. AB 805 – Restated Davis-Stirling Act

AB 805 enacted in 2012 reorganized and restated the Davis-Stirling Act and moved it to a new part of the California Civil Code. While there are some changes to the Davis-Stirling act as a result of AB 805, most of the changes are relatively benign as this was designed to be a non-controversial matter. We have already written about the more significant changes coming with the restated Davis-Stirling act, and you can find our detailed article, “Guide to the Davis-Stirling Act Reorganization (AB 805)“, or click here to download a PDF version of that article.

2. SB 745 – Davis-Stirling Restatement Clean-up Legislation

SB 745 is a multi-issue omnibus bill, and as it relates to community associations primarily acts to “clean up” some issues related to the reorganizing of the Davis-Stirling Common Interest Development Act, which becomes effective on Jan. 1, 2014. As enacted in 2012, AB 805 reorganized and rewrote the Davis-Stirling Act in a new part of the California Civil Code. As often happens with such a significant undertaking, items are inadvertently omitted, or changes in the law are not incorporated in time to be included in the bill. SB 745 serves to rectify those types of issues.

Continue reading “2013 Legislative Update for California Community Associations”

Robert M. DeNichilo’s article “Yay! I’m on the Board or OMG, What did I get myself into?” Appears in Connect Magazine

CAI GRIE Connect Issue 3 2013 - Yay I'm on the BoardRobert M. DeNichilo’s article on on homeowner association board member duties and obligations entitled “Yay! I’m on the Board or OMG, What did I get myself into?” was recently published by CAI’s Greater Inland Empire Chapter’s Connect Magazine. You can read the original article here, or click here to download the version which was published in Connect Magazine.

Guest Post at the CLAC Blog regarding the signing of the “Clean Up” Legislation for Revised Davis-Stirling Act

CLAC - SB 745I recently submitted a guest post on the CAI California Legislative Action Committee (CLAC) blog regarding  SB 745, the “clean up legislation for the revised Davis-Stirling Act, which goes into law on January 1, 2014. You can read the post and my analysis of how SB 745 addresses several omissions from the revised Davis-Stirling Act here.

If you would like additional information on the revised Davis-Stirling Act, and what changes will take effect in the new year, please read my post “A Guide to the Revised Davis-Stirling Act (AB 805)

What Does it Take to Amend the CC&Rs?

One of the questions that we are often asked is “What is required to amend the CC&Rs?” Civil Code section 1355 (Civil Code section 4270 starting in 2014) provides that an amendment to CC&Rs is effective after all of the following requirements have been met . . .

amendmentsOne of the questions that we are often asked is “What is required to amend the CC&Rs?” Civil Code section 1355 (Civil Code section 4270 starting in 2014) provides that an amendment to CC&Rs is effective after all of the following requirements have been met:

  • The requisite approval of the percentage of owners as required by the governing documents has been obtained,
  • Written certification of the approval by an officer of the association, and
  • Recordation of the amendment

While the specific approval required must be determined by looking at the specific set of CC&Rs, most such documents require the approval of a super-majority of owners, typically 67% of the total voting power. If the CC&Rs are silent on the required percentage of owner approval necessary to amend the CC&Rs, then Civil Code section 1355 provides that an amendment may be approved by a majority of all members.

If there are multiple classes of membership, it is not uncommon for the CC&Rs to require the approval of a super-majority of each class of members to also be required. In addition, certain types of amendments may require the approval of first mortgagees (the banks who hold the mortgages on the various units or residences in the association), or even the city. The types of amendments which require the approval of the first mortgagees are spelled out in the CC&Rs, and typically are limited to amendments which could adversely impact the security interest of the mortgagee, such as amendments changing the manner in which assessments are imposed or allocated among the various owners.

How Do We Vote?

Once the required approval percentage is determined, the Davis-Stirling Act requires that voting on the proposed amendment must be done by the double envelope secret ballot process set forth in Civil Code section 1363.03(b) (Civil Code section 5115 starting in 2014), with the votes counted at an open meeting so that the vote counting can be observed by the members. The ballot must contain the proposed amendment to be voted on by the members.

Continue reading “What Does it Take to Amend the CC&Rs?”

A Guide to the Revised Davis-Stirling Act (AB 805)

There will no doubt be some adjustment period to the new revised Davis-Stirling Act. However, the reality that the revision to the Davis-Stirling Act was really simply rewritten rather than changed in any significant way. This should provide comfort to managers and board members anticipating the new law and its implementation coming in January 2014.

I recently spoke to the Inland Empire Chapter of CAI regarding the upcoming changes to California’s Common Interest Development Act, or the Davis-Stirling Act, which takes effect on January 1, 2014. In preparation for that presentation, it became clear that despite the numerous resources available regarding the revised Act, many people are still concerned and wonder how the new law will impact their community association. The good news is that there is no reason to panic. The revisions to the Davis-Stirling Act were designed to be non-controversial. As a result, the substantive changes to the law are relative few in number and small in impact. In addition, there are some advantages to revising the Davis-Stirling Act. The current version of the Act has several “issues.” Sections which are logically related to each other are not located near each other in the Act making locating all the relevant sections difficult and confusing. Also, several sections are excessively long and complicated making them hard to read. The revisions to the Act make several changes which address the current version’s short comings. These include changes which group related provisions in a more logical order, long sections are divided into shorter, easier to read sections, more consistent terminology is used throughout the Act, and governance procedures are standardized. That does not mean there aren’t some disadvantages, however. The most significant of which is that those of us who deal with the Davis-Stirling Act will have to learn all over again what code sections contain various provisions due to the complete renumbering of the Act.

While a board may want to consider amending the governing documents, there is no legal requirement to do so. However, the new law (Civil Code section 4235) allows a board to amend the governing documents to update references to various sections of the Davis-Stirling Act by a board vote, allowing boards to avoid a member vote to amend the CC&Rs in this limited circumstance.

The following highlights the changes to the Act which we find to be the most significant. There are some additional changes which are not addressed in this article because few will ever come across them (such as the change in who can sign an amendment to a condo plan), but the changes you are most likely to encounter are covered.

  1. Notice and Delivery – One of the most significant changes in the Davis-Stirling Act is how an association can give “notice” to its members. New Civil Code section 4045 allows for “general notice” to be given by (1) first class mail; (2) email, facsimile, or other electronic means upon receipt of written consent to receive notice in that fashion; (3) inclusion in a billing statement, newsletter or other document Continue reading “A Guide to the Revised Davis-Stirling Act (AB 805)”