How Much Can the Assessment Rise When Law, CC&Rs; Differ?

Question: I own a unit in a condominium association. You recently wrote about the procedures for increasing the monthly assessments. I need clarification on the board’s authority to increase assessments when the declaration of covenants, conditions and restrictions, or CC&Rs;, places a limit on the amount that the assessments can be increased.

Our legal documents state that the assessments can only be increased a small percentage per year with the vote of 51% of the owners. Our board of directors argues that there is a state law that allows them to approve a higher assessment increase.

Can the board choose to abide by the law or CC&Rs; based on what they want to do? Do we follow the state law or the CC&Rs;?

Answer: There are certain laws in the California Civil Code that supersede your association’s legal documents.

The law regarding the board’s authority to increase assessments appears in Civil Code Section 1366. It has been amended in recent years, and each change in the law makes it more difficult to understand.

The board has the authority to increase assessments up to 20% above the prior year’s budget if they comply with Civil Code 1365(a), which contains a requirement to distribute the annual budget 45 to 60 days before the beginning of the fiscal year.

If the budget was not distributed on time, then the owners would have to vote on the increase at a meeting called for the specific purpose of increasing the assessments. More than 50% of the owners would constitute a quorum of the members and a majority of the members attending the meeting would have to approve the increase.

A board of directors may also approve a 5% special assessment in addition to the regular assessment if it distributes the annual budget according to the stipulated requirements in Civil Code 1365(a).

An emergency special assessment can be any amount that is needed because of a court order or to correct a maintenance problem that is a threat to safety.

If there are extraordinary expenses that were unforeseen at the time the budget was prepared and distributed, the board may approve an emergency special assessment if proper documentation and explanation are provided to the owners.

A copy of the board’s resolution to approve the emergency special assessment must be distributed with the notice of assessment.

The association’s board cannot determine whether to follow state law or the CC&Rs.; In general, if the state law differs from the CC&Rs;, the state law prevails. However, there are sections of the law that specifically state that the CC&Rs; or the association’s bylaws are the controlling document.

Association boards should rely on the advice of an attorney to determine which portions of the association’s legal documents are superseded by state or federal statutes. If you have reason to question the attorney’s advice, a second opinion should be obtained.

Manager Won’t Mow Homeowner’s Lawn

Q: I recently purchased a home in a homeowner association. I was told by the real estate agent that the association is responsible for mowing the owners’ lawns.

For the first few months, everything was fine. Then new managers were hired and they do not want to mow the grass. They told all the owners they would have to mow their lawns themselves.

I went to the board meeting and complained. Now the manager is mowing everyone’s lawns except mine. I am physically unable to mow my own lawn.

What constitutes a common area and who is responsible for maintaining the lawns? Can I sue the association or the manager?

A: Your association’s declaration should include a section of definitions that explains the term “common area.” Usually in another section of the document, the maintenance responsibilities of the association are listed. In general, common areas are usually the association’s responsibility. Owner responsibilities are also shown.

You should consult an attorney if you don’t understand the documents. If the sales agent misled you about the association’s maintenance obligations, the attorney will be able to advise you regarding your legal alternatives. Filing a lawsuit should be your last resort after trying all other methods the attorney recommends.

Hickenbottom is a community association management consultant and a founding director of the California Assn. of Community Managers. She selects questions of general interest for the column and regrets that she cannot respond to all questions. Send questions to Condo Q&A;, Box 5068, Thousand Oaks, CA 91360.

A Bluebook for Associations

“The Condominium Bluebook,” compiled by attorney Brandon E. Bickel, is an excellent resource for condominium associations, planned developments and all other forms of community associations.

The 1999 edition contains the Davis-Stirling Common Interest Development Act and other portions of the civil code, corporations code, labor code and vehicle code that pertain to community associations. Helpful forms and checklists and a basic parliamentary procedure guide for association meetings are included.

“The Condominium Bluebook” can be obtained by sending a check for $20 made payable to Condo Consulting Services, which includes tax, postage and handling. Send your order to Condo Consulting Services, P.O. Box 5068, Thousand Oaks, CA 91360. Allow four weeks for delivery.