Civil Code 1355.5 provides a cost-effective way for boards to remove portions of CC&Rs made moot by the developer's project completion. Associations do not have to remove developer language because it is inapplicable. If a board elects to remove developer language, the amendments must be discussed at an open meeting and be approved by a vote of all titleholders. That is a lot of work merely to remove provisions that have no force or effect. Removal of race-based terms that discriminate is accomplished by a simple amendment, not by rewriting governing documents. Rather than requiring the hiring of an attorney to make changes, the law provides that restating documents, eliminating race-based restrictions but making no other changes, is all that is required, and then only if requested. Other than "senior housing" exceptions, no clauses that discriminate are enforceable.
No need to restate property rules
ASSOCIATIONS
Board should ignore vendors' warnings that documents must be rewritten. The advice could prove expensive.
A board shouldn't change the governing documents just because it can. We have heard reports about boards that rewrote their CC&Rs only to discover that their homeowner insurance was canceled or they were unable to obtain insurance.
Reliance on prepackaged or do-it-yourself manuals or adopting CC&Rs written for another association can create a major risk to homeowners. A board's reliance on such products could constitute a breach of fiduciary duty.
The CC&Rs are written in legalese because the law requires them to contain certain language. Unless management company personnel are licensed attorneys, they are practicing law without a license in advising that the CC&Rs must be rewritten in "laymen's language" to "correct typos" and "keep up with the law."
Warning: These CC&Rs are a restriction on your title. Any amendment, rewrite, addition or deletion of the document is a new restriction on your title. All must be disclosed to potential buyers and can affect the value of your asset.
Do not vote to alter your CC&Rs without thoroughly understanding the legal and fiscal effect your vote will have on your asset. Once your vote is cast, it can't be revoked.
Advice to boards from lawyers is just that, but it is only an attorney's opinion of the law, not what the courts may ultimately decide. In this case it is probably better leaving your CC&Rs well enough alone.
Please e-mail questions to: NoExit@mindspring.com.
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August 3, 2001 - It's Worth Revising Those Documents
September 19, 1999
