An association may opt to amend or restate its CC&Rs to reflect changes in the law, to address circumstances in the development that may not have existed when it was originally formed, or to modify the rights and responsibilities of the association and its members. The requirements for amending the CC&Rs (i.e., membership approval requirements) will be set forth within the CC&Rs, or as provided for in the Civil Code.
Civil Code Section 4270(a) sets forth the three (3) primary requirements for amending the CC&Rs. Those requirements include:
- The approval by the percentage of members required (and any other person whose approval is required) under the CC&Rs;
- The amendment is certified, in a writing, that has been both executed and acknowledged by the officer designated in the CC&Rs or by the association for that purpose, or if no one is designated, by the president of the association; and
- The amendment is recorded in the County in which the development is situated.
Silence in the CC&Rs as to Approval Requirement
Where the CC&Rs “does not specify the percentage of members who must approve an amendment to the declaration, an amendment may be approved by a majority of all members pursuant to Section 4065.” (Civ. Code § 4270(b).)
No Amendment Provision in the CC&Rs
“Except to the extent that a declaration provides by its express terms that it is not amendable, in whole or in part, a declaration that fails to include provisions permitting its amendment at all times during its existence may be amended at any time.” (Civ. Code § 4260.)
Balloting & Election Procedure
Voting to amend the CC&Rs must be done by secret ballot pursuant to written election rules established by the association. (Civ. Code §§ 5100, 5105(a); See also “Balloting Requirements & Procedures.”) The text of the proposed CC&R amendment must be delivered to the members with the ballot. (Civ. Code § 5115(e).)
Court Approval of Amendment/Reduction of Approval Requirement
Older sets of CC&Rs may require that an amendment to the CC&Rs be approved by a “supermajority” (i.e., sixty-seven percent (67%)) of the association’s membership. Such requirements make it difficult for an association to pass a proposed amendment, often as a result of member apathy or lack of participation in the voting process. When this occurs, Civil Code Section 4275 provides a mechanism for the association to “petition the superior court of the county in which the common interest development is located for an order reducing the percentage of affirmative votes necessary for such an amendment.” (See “Court Petition to Amend Declaration”.)
Mortgagee (Lender) Approval for CC&R Amendments
When an association seeks to amend certain provisions of the CC&Rs (often defined as “material modifications” or “material amendments”), the CC&Rs may require approval for the amendment from not only the members, but also from the mortgagees (lenders) holding first mortgages on the lots or units within the association’s development. (See “Mortgagee (Lender) Approval for CC&R Amendments.”)
Correction of Outdated Code References
Subject to certain limitations, an association’s CC&Rs may be amended by the board without membership approval solely to correct outdated code references to prior Davis-Stirling Act code numbers. (See “Correction of Outdated Code References.”)
Related Case Law
- Mission Shores Association v. Pheil
(2008) 83 Cal.App.4th 789
[Amendments to CC&Rs; Rent Restriction] An amendment to the CC&Rs which empowered the HOA to evict tenants who violate the CC&Rs was held to be reasonable.
- Peak Investments v. South Peak Homeowners Association, Inc.
(2006) 140 Cal.App.4th 1363
[CC&R Amendments; Court Petition] Proposed HOA CC&R amendments must be approved by at least a simple majority of the total votes in a HOA before a trial court may reduce the approval requirement set in the CC&Rs.
- Fourth La Costa Condominium Owners Association v. Seith
(1997) 55 Cal.App.4th 472
[CC&R Amendments; Real Estate Signs] Court upheld lender consent requirement for CC&R amendment, rather than lender vote; Real estate signs may be regulated for aesthetic purposes and may be prohibited from being posted in HOA common areas.
- Blue Lagoon Community Association. v. Mitchell
(1997) 55 Cal.App.4th 472
[Amendments to CC&Rs; Court Petition] Objectors to a petition brought pursuant to Civ. Code § 1356 (§ 4275) are not entitled to costs and attorney’s fees when the petition is denied.