HOA Rules? We Don’t Need Notice to Revise Our Stinking Rules!
Considering revising your HOA ‘s rules? In this week ‘s tip, we discuss when you need to consult with owners and when you can go forward without notice.
“Rules are funny,” says J. Roger Wood, an attorney with Carpenter, Hazlewood, Delgado & Wood PLC in Tucson, Ariz., who specializes in representing community associations. “Some associations are too rule heavy when they have pretty robust CC&Rs to cover many things. HOAs have to use rules to help owners understand CC&R provisions or regulate things like the common area, which isn’t included in the CC&Rs. The governing documents don’t say when the pools will be open, so you have to make those kinds of rules.”
So start with determining whether you need to revise your rule in the first place. If you do, then figure out the process to follow. In some states, HOAs must get members’ approval for rule changes. That’s true in California, says Robert M. DeNichilo, an attorney at DeNichilo & Lindsley LLP in Irvine, Calif., who specializes in representing community associations. “Rules that apply generally to the association have to be published to the membership, and members have to be given 30 days to comment on the rules and provide input. After that 30–day time period, the board has to meet and consider comments and whether to adopt the rule or not. But it may not have to change anything. The exception is an emergency.”
In Minnesota, there are no such notice requirements. “The statute authorizing boards to pass rules in Minnesota doesn’t contain a notice requirement,” according to Matthew A. Drewes, a partner at Thomsen & Nybeck PA in Edina, Minn., who represents associations. “Boards are authorized to change rules so as long as those rules aren’t inconsistent with the declaration and they were passed in a manner consistent with the declaration and the bylaws. You’re left to reviewing those documents to determine the minimum requirements for your rulemaking process.”
There’s also no state law in Arizona that sets forth HOA rulemaking, which also leaves boards to look to their governing documents to determine how to revise their rules. “A lot of governing documents don’t require prior notice to owners,” says Wood. “But they would require notice of a rule change to go out to owners.”