Q: Our community association's covenants, codes and restrictions (CC&Rs) are more than 20 years old.  How do we know whether this important document is in need of updating?
 
A: Most community association CC&Rs that are more than 20 years old are very likely in need of some updating.  Let me illustrate some of the reasons why.

It was not until 1985 that the California Legislature adopted the Davis-Stirling Common Interest Development Act ("Davis Stirling Act").  For the first time, this Act consolidated laws related to the governance, formation, operation and management of common interest developments in California.  

This series of laws can be found starting at California Civil Code Section 1350.  However, the Davis-Stirling Act has been changed, updated, and new laws added practically every legislative year since its initial enactment. 

As a result, most CC&Rs that are 20 years or older probably are out of date with respect to certain current laws related to association issues.  Here is a simple example.  Your existing CC&Rs may contain antiquated language that limits the amount or percentage by which your board of directors may increase the association's regular assessments without a vote of the owners.  

However, under the act, regardless of what your CC&Rs say, the board may vote to increase the regular assessments up to 20 percent over the prior year's assessments without a vote of the owners.  This is provided, of course, that your Board has complied with the certain annual notice and financial disclosure requirements to its members.  

While the act still supersedes these outdated provisions in any community association documents, the existence of the language itself in the CC&Rs still leads to confusion among owners in the association who may not be familiar with the law.  

Misunderstandings can then lead to dissatisfaction and discord between owners and the Board, which benefits no one in the long run.

In addition, older CC&Rs typically contain provisions about the developer's rights and developer issues.  These provisions are clearly outdated and unnecessary where the developer has long ago sold out any interest in the development.  Deletion of these provisions can clean up the CC&Rs to address only relevant association issues.

Another common problem is that CC&Rs drafted over 20 years ago or more may not have clearly explained the difference between an owner's maintenance responsibility and the association's maintenance responsibility on certain types of building components.  Due to this lack of specificity, various boards may have taken inconsistent positions on maintenance items over the years.  

This leads to false expectations of owners and a lack of guidance for any board that is trying to plan for the association's financial future, including allocating reserves.  With a 20-year history, your Board would have a good idea of those maintenance areas that need to be clarified in the form of an amendment to your CC&Rs.

Other examples of CC&R provisions that could be addressed through an amendment are provisions requiring the association and owners to engage in Alternative Dispute Resolution (ADR) to address disputes between an owner and the association.  Consider deleting outdated provisions that require the association to obtain certain obsolete types of insurance that are no longer available in the open marketplace.

In addition, you should consider updating your CC&Rs to address any long-standing issues that the association has had regarding interpretation of certain provisions or restrictions.  For example, an association may be experiencing a problem with respect to parking in the development.  When the CC&Rs were first drafted, the fair allocation of parking in the common area may not have been a serious concern.  

 Over the years, parking may have become a much bigger issue.  Existing provisions could be modified to clarify the use of garages for the parking of vehicles and not for excessive storage that prevents vehicles rom being parked in the garage.  An amendment could address how excessive storage or the failure to park within the garage negatively impacts the already limited open space parking available or an owner/resident's right to park in the open spaces.

CC&Rs for brand-new developments typically have better drafted provisions that establish the parking criteria.  

Also consider deleting provisions from your CC&Rs that are legally unenforceable or blatantly unreasonable.  In other words, get rid of provisions that your board cannot enforce.

Remember that your CC&Rs are a legal document.  You should seek the advise of your association's legal counsel prior to attempting to amend your CC&Rs.  

Next week:  Suggestions on how a community association can overcome the procedural formalities of amending CC&Rs.

Laura V. Kwiatkowski is a member of the Community Associations Institute (CAI) and is a San Diego attorney.  Readers can visit the CAI Website at www.cai-sd.org and can get their condominium or homeowners association questions answered by calling the Community Associations Institute at (619) 299-1376 or e-mail at q&a@cai-sd.org or sending questions to: Condominiums, Homes, San Diego Union-Tribune, P.O. Box 120191, San Diego 92112-0191.

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