BILL NUMBER: AB 512 AMENDED
BILL TEXT
AMENDED IN SENATE JULY 14, 2003
AMENDED IN SENATE JUNE 23, 2003
AMENDED IN ASSEMBLY APRIL 30, 2003
INTRODUCED BY Assembly Member Bates
(Coauthors: Assembly Members Maze and Pacheco)
FEBRUARY 18, 2003
An act to amend Sections 1363, 1368, and 1373 of, to add Sections
1350.5 and 1350.7 to, to add Article 4 (commencing with Section
1357.100) and Article 2 (commencing with Section 1378.010)
to, and to add chapter and article headings to Title 6
(commencing with Section 1350) of Part 4 of Division 2 of, the Civil
Code, relating to common interest developments.
LEGISLATIVE COUNSEL'S DIGEST
AB 512, as amended, Bates. Common interest developments.
The Davis-Stirling Common Interest Development Act defines and
regulates common interest developments. The act requires that a
common interest development have a recorded declaration, as
specified, and permits the declaration to be amended according to the
act's provisions or those of the governing documents, as defined.
The act requires that a common interest development be managed by an
association, and that a member of the association may attend meetings
of the board of directors of the association, except when they meet
in executive session to consider specified matters. The act excepts
certain common interest developments expressly zoned as industrial or
commercial developments, as specified, from certain of its
requirements.
This bill would revise the Davis-Stirling Common Interest
Development Act to add chapter and article headings to its
provisions. The bill would specify that these headings do not change
the scope, meaning, or intent of the bill.
This bill would also add provisions concerning procedural fairness
in decisionmaking and rulemaking by associations. The bill would
add requirements regarding operating rules relating to the use of the
common area, the use of a separate interest, member discipline, and
assessment collection, as specified. Among other things, the bill
would establish criteria for valid operating rules, require that
members have notice and an opportunity to comment
, provide an optional rulemaking procedure and an optional emergency
rulemaking procedure, and establish a procedure for reversing a
rule. The bill would revise the provisions regarding common interest
development developments that are
zoned as industrial or commercial developments, as described above,
and would except certain of its provisions from application to these
developments. The bill, with specified exceptions, would
also require that a decision on a proposed alteration of a separate
interest, exclusive use common area, or a common area, by an owner of
a separate interest, be made in good faith and in a fair and
reasonable manner, and would establish an optional decisionmaking
procedure for these alterations that would satisfy this requirement.
The bill would further provide general document delivery
rules, to be applicable when specified.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. A chapter heading is added to Title 6 (commencing with
Section 1350) of Part 4 of Division 2 of the Civil Code, immediately
preceding Section 1350, to read:
CHAPTER 1. GENERAL PROVISIONS
SEC. 2. An article heading is added to Title 6 (commencing with
Section 1350) of Part 4 of Division 2 of the Civil Code, immediately
preceding Section 1350, to read:
Article 1. Preliminary Provisions
SEC. 3. Section 1350.5 is added to the Civil Code, to read:
1350.5. Division, part, title, chapter, and section headings do
not in any manner affect the scope, meaning, or intent of this title.
SEC. 4. Section 1350.7 is added to the Civil Code, to read:
1350.7. (a) This section applies to delivery of a document to the
extent the section is made applicable by another provision of this
title.
(b) A document shall be delivered by one or more of the following
methods:
(1) Personal delivery.
(2) First-class mail, postage prepaid, addressed to a member at
the address last shown on the books of the association or otherwise
provided by the member. Delivery is deemed to be complete on the
fifth day after deposit into the United States Mail.
(3) E-mail, facsimile, or other electronic means, if the recipient
has agreed to that method of delivery. If a document is delivered by
electronic means, delivery is complete at the time of transmission.
(4) By publication in a periodical that is circulated primarily to
members of the association.
(5) If the association broadcasts television programming for the
purpose of distributing information on association business to its
members, by inclusion in the programming.
(6) A method of delivery provided in a recorded provision of the
governing documents.
(7) Any other method of delivery, provided that the recipient has
agreed to that method of delivery.
(c) A document may be included in or delivered with a billing
statement, newsletter, or other document that is delivered by one of
the methods provided in subdivision (b).
(d) For the purposes of this section, an unrecorded provision of
the governing documents providing for a particular method of delivery
does not constitute agreement by a member of the association to that
method of delivery.
SEC. 5. An article heading is added to Title 6 (commencing with
Section 1350) of Part 4 of Division 2 of the Civil Code, immediately
preceding Section 1351, to read:
Article 2. Definitions
SEC. 6. A chapter heading is added to Title 6 (commencing with
Section 1350) of Part 4 of Division 2 of the Civil Code, immediately
preceding Section 1352, to read:
CHAPTER 2. GOVERNING DOCUMENTS
SEC. 7. An article heading is added to Title 6 (commencing with
Section 1350) of Part 4 of Division 2 of the Civil Code, immediately
preceding Section 1352, to read:
Article 1. Creation
SEC. 8. An article heading is added to Title 6 (commencing with
Section 1350) of Part 4 of Division 2 of the Civil Code, immediately
preceding Section 1354, to read:
Article 2. Enforcement
SEC. 9. An article heading is added to Title 6 (commencing with
Section 1350) of Part 4 of Division 2 of the Civil Code, immediately
preceding Section 1355, to read:
Article 3. Amendment
SEC. 10. Article 4 (commencing with Section 1357.100) is added to
Title 6 of Part 4 of Division 2 of the Civil Code, immediately
following Section 1357, to read:
Article 4. Operating Rules
1357.100. As used in this article, "rule change" means the
adoption, amendment, or repeal of an operating rule by the board of
directors of the association.
1357.110. This article only applies to an operating rule relating
to one or more of the following subjects:
(a) Use of the common area or of an exclusive use common area.
(b) Use of a separate interest, including any aesthetic or
architectural standards that govern alteration of a separate
interest.
(c) Member discipline, including any schedule of monetary
penalties for violation of the governing documents and any procedure
for the imposition of penalties.
(d) Assessment collection procedures.
1357.120. This article does not apply to the following actions by
the board of directors of an association:
(a) A decision in a specific case that is not intended to apply
generally.
(b) A decision setting the amount of a regular or special
assessment.
(c) A rule change that is required by law, if the board of
directors has no discretion as to the substantive effect of the rule
change.
(d) Issuance of a document that merely repeats existing law or the
governing documents.
(e) A decision regarding maintenance of the common area.
1357.130.
1357.110. An operating rule is valid and enforceable only
if all of the following requirements are satisfied:
(a) The rule is in writing.
(b) The rule is within the authority of the board of directors of
the association conferred by law or by the declaration, articles of
incorporation or association, or bylaws of the association.
(c) The rule is not inconsistent with governing law and the
declaration, articles of incorporation or association, and bylaws of
the association.
(d) The rule is adopted, amended, or repealed in good faith and in
substantial compliance with the requirements of this article.
(e) The rule is reasonable.
1357.140. The board of directors of an association shall provide
members with notice and an opportunity to comment before making a
rule change.
1357.150. (a) Use of the procedure described in this section
satisfies the requirements of Section 1357.140. An association is
not required to use this procedure.
(b) The board of directors of the association shall deliver notice
of a proposed rule change to every association member. The notice
shall include all of the following information:
(1) The text of the proposed rule change.
(2) A description of the purpose and effect of the proposed rule
change.
(3) The deadline for submission of a comment on the proposed rule
change.
(c) For a period of not less than 30 days following delivery of a
notice of a proposed rule change, the board of directors shall accept
written comments from association members on the proposed rule
change.
(d) The board of directors shall consider any comments it receives
and shall make a decision on a proposed rule change at a board
meeting. A decision shall not be made until after the comment
submission deadline.
(e) The board of directors shall deliver notice of a rule change
to every association member. The notice shall set out the text of the
rule change and state the date the rule change takes effect. The
date the rule change takes effect shall be not less than 15 days
after notice of the rule change is delivered.
(f) A document that is required to be delivered pursuant to this
section is subject to Section 1350.7.
1357.160. (a) Use of the procedure described in this section
satisfies the requirements of Section 1357.140. An association is
not required to use this procedure.
(b) If the board of directors of an association determines that an
immediate rule change is necessary to address an imminent threat to
public health or safety, or an imminent risk of substantial economic
loss to the association, it may make the rule change immediately.
(c) As soon as possible after making a rule change under this
section, but not more than 15 days after making the rule change, the
board of directors shall deliver notice of the rule change to every
association member. The notice shall include the text of the rule
change and an explanation of why an immediate rule change is required
to address an imminent threat to public health or safety, or an
imminent risk of substantial economic loss to the association.
(d) A rule change made under this section is effective for 120
days, unless the rule change provides for a shorter effective period.
(e) A rule change made under this section may not be readopted
under this section.
(f) A document that is required to be delivered pursuant to this
section is subject to Section 1350.7.
1357.170.
1357.120. (a) The board of directors shall provide notice of a
proposed rule change at least 10 days before making the rule change.
Notice is not required under this subdivision if the board of
directors determines that an immediate rule change is necessary to
address an imminent threat to public health or safety or imminent
risk of substantial economic loss to the association.
(b) A decision on a proposed rule change shall be made at a
meeting of the board of directors, after consideration of any
comments made by association members.
(c) As soon as possible after making a rule change, but not more
than 15 days after making the rule change, the board of directors
shall deliver notice of the rule change to every association member.
(d) If the board of directors determines that an immediate rule
change is required to address an imminent threat to public health or
safety, or an imminent risk of substantial economic loss to the
association, it may make an emergency rule change; and no notice is
required, as specified in subdivision (a). An emergency rule change
is effective for 120 days, unless the rule change provides for a
shorter effective period. A rule change made under this subdivision
may not be readopted under this subdivision.
(e) A notice required by this section is subject to Section
1350.7.
1357.130. (a) Members of an association owning 5 percent or
more of the separate interests may call a special meeting to reverse
a rule change.
(b) A special meeting may be called by delivering a written
request to the chair or secretary of the board of directors. The
written request may not be delivered more than 30 days after the
members of the association are notified of the rule change. Members
are deemed to have been notified of a rule change on delivery of
notice of the rule change, or on enforcement of the resulting rule,
whichever is sooner. For the purposes of Section 8330 of the
Corporations Code, collection of signatures to call a special meeting
under this section is a purpose reasonably related to the interests
of the members of the association. A member request to copy or
inspect the membership list solely for that purpose may not be denied
on the grounds that the purpose is not reasonably related to the
member's interests as a member.
(c) The rule change may be reversed by the affirmative vote of a
majority of the votes represented and voting at a duly held meeting
at which a quorum is present (which affirmative votes also constitute
a majority of the required quorum) or by written ballot in
conformity with Section 7513 of the Corporations Code, or if the
declaration or bylaws require a greater proportion, by the
affirmative vote or written ballot of the proportion required.
(d) Unless otherwise provided in the declaration or bylaws, for
the purposes of this section, a member may cast one vote per separate
interest owned.
(e) A meeting called under this section is governed by Chapter 5
(commencing with Section 7510) of Part 3 of Division 2 of Title 1 of,
and Sections 7612 and 7613 of, the Corporations Code.
(f) A rule change reversed under this section may not be readopted
for one year after the date of the meeting reversing the rule
change.
(g) The board of directors shall provide notice of the results of
a member vote held pursuant to this section to every association
member. Delivery of notice under this subdivision is subject to
Section 1350.7.
(h) This section does not apply to an emergency rule change made
under Section 1357.160.
1357.180. subdivision (d) of section 1357.120.
1357.140. (a) Sections 1357.120 and 1357.130 only apply to an
operating rule that relates to one or more of the following subjects:
(1) Use of the common area or of an exclusive use common area.
(2) Use of a separate interest, including any aesthetic or
architectural standards that govern alteration of a separate
interest.
(3) Member discipline, including any schedule of monetary
penalties for violation of the governing documents and any procedure
for the imposition of penalties.
(4) Assessment collection procedures.
(b) Sections 1357.120 and 1357.130 do not apply to the following
actions by the board of directors of an association:
(1) A decision regarding maintenance of the common area.
(2) A decision in a specific case that is not intended to apply
generally.
(3) A decision setting the amount of a regular or special
assessment.
(4) A rule change that is required by law, if the board of
directors has no discretion as to the substantive effect of the rule
change.
(5) Issuance of a document that merely repeats existing law or the
governing documents.
1357.150. (a) This article applies to a rule change
commenced on or after January 1, 2004.
(b) Nothing in this article affects the validity of a rule change
commenced before January 1, 2004.
(c) For the purposes of this section, a rule change is commenced
when the board of directors of the association takes its first
official action leading to adoption of the rule change.
SEC. 11. A chapter heading is added to Title 6 (commencing with
Section 1350) of Part 4 of Division 2 of the Civil Code, immediately
preceding Section 1358, to read:
CHAPTER 3. OWNERSHIP RIGHTS AND INTERESTS
SEC. 12. A chapter heading is added to Title 6 (commencing with
Section 1350) of Part 4 of Division 2 of the Civil Code, immediately
preceding Section 1363, to read:
CHAPTER 4. GOVERNANCE
SEC. 13. An article heading is added to Title 6 (commencing with
Section 1350) of Part 4 of Division 2 of the Civil Code, immediately
preceding Section 1363, to read:
Article 1. Association
SEC. 14. Section 1363 of the Civil Code is amended to read:
1363. (a) A common interest development shall be managed by an
association which may be incorporated or unincorporated. The
association may be referred to as a community association.
(b) An association, whether incorporated or unincorporated, shall
prepare a budget pursuant to Section 1365 and disclose information,
if requested, in accordance with Section 1368.
(c) Unless the governing documents provide otherwise, and
regardless of whether the association is incorporated or
unincorporated, the association may exercise the powers granted to a
nonprofit mutual benefit corporation, as enumerated in Section 7140
of the Corporations Code, except that an unincorporated association
may not adopt or use a corporate seal or issue membership
certificates in accordance with Section 7313 of the Corporations
Code.
The association, whether incorporated or unincorporated, may
exercise the powers granted to an association by Section 383 of the
Code of Civil Procedure and the powers granted to the association in
this title.
(d) Meetings of the membership of the association shall be
conducted in accordance with a recognized system of parliamentary
procedure or any parliamentary procedures the association may adopt.
(e) Notwithstanding any other provision of law, notice of meetings
of the members shall specify those matters the board intends to
present for action by the members, but, except as otherwise provided
by law, any proper matter may be presented at the meeting for action.
(f) Members of the association shall have access to association
records, including accounting books and records and membership lists,
in accordance with Article 3 (commencing with Section 8330) of
Chapter 13 of Part 3 of Division 2 of Title 1 of the Corporations
Code. The members of the association shall have the same access to
the operating rules of the association as they have to the accounting
books and records of the association.
(g) If an association adopts or has adopted a policy imposing any
monetary penalty, including any fee, on any association member for a
violation of the governing documents or rules of the association,
including any monetary penalty relating to the activities of a guest
or invitee of a member, the board of directors shall adopt and
distribute to each member, by personal delivery or first-class mail,
a schedule of the monetary penalties that may be assessed for those
violations, which shall be in accordance with authorization for
member discipline contained in the governing documents. The board of
directors shall not be required to distribute any additional
schedules of monetary penalties unless there are changes from the
schedule that was adopted and distributed to the members pursuant to
this subdivision.
(h) When the board of directors is to meet to consider or impose
discipline upon a member, the board shall notify the member in
writing, by either personal delivery or first-class mail, at least 10
days prior to the meeting. The notification shall contain, at a
minimum, the date, time, and place of the meeting, the nature of the
alleged violation for which a member may be disciplined, and a
statement that the member has a right to attend and may address the
board at the meeting. The board of directors of the association
shall meet in executive session if requested by the member being
disciplined.
If the board imposes discipline on a member, the board shall
provide the member a written notification of the disciplinary action,
by either personal delivery or first-class mail, within 15 days
following the action. A disciplinary action shall not be effective
against a member unless the board fulfills the requirements of this
subdivision.
(i) Whenever two or more associations have consolidated any of
their functions under a joint neighborhood association or similar
organization, members of each participating association shall be
entitled to attend all meetings of the joint association other than
executive sessions, (1) shall be given reasonable opportunity for
participation in those meetings and (2) shall be entitled to the same
access to the joint association's records as they are to the
participating association's records.
(j) Nothing in this section shall be construed to create, expand,
or reduce the authority of the board of directors of an association
to impose monetary penalties on an association member for a violation
of the governing documents or rules of the association.
SEC. 15. An article heading is added to Title 6 (commencing with
Section 1350) of Part 4 of Division 2 of the Civil Code, immediately
preceding Section 1363.05, to read:
Article 2. Common Interest Development Open Meeting Act
SEC. 16. An article heading is added to Title 6 (commencing with
Section 1350) of Part 4 of Division 2 of the Civil Code, immediately
preceding Section 1363.1, to read:
Article 3. Managing Agents
SEC. 17. An article heading is added to Title 6 (commencing with
Section 1350) of Part 4 of Division 2 of the Civil Code, immediately
preceding Section 1363.5, to read:
Article 4. Public Information
SEC. 18. A chapter heading is added to Title 6 (commencing with
Section 1350) of Part 4 of Division 2 of the Civil Code, immediately
preceding Section 1364, to read:
CHAPTER 5. OPERATIONS
SEC. 19. An article heading is added to Title 6 (commencing with
Section 1350) of Part 4 of Division 2 of the Civil Code, immediately
preceding Section 1364, to read:
Article 1. Common Areas
SEC. 20. An article heading is added to Title 6 (commencing with
Section 1350) of Part 4 of Division 2 of the Civil Code, immediately
preceding Section 1365, to read:
Article 2. Fiscal Matters
SEC. 21. An article heading is added to Title 6 (commencing with
Section 1350) of Part 4 of Division 2 of the Civil Code, immediately
preceding Section 1365.7, to read:
Article 3. Insurance
SEC. 22. An article heading is added to Title 6 (commencing with
Section 1350) of Part 4 of Division 2 of the Civil Code, immediately
preceding Section 1366, to read:
Article 4. Assessments
SEC. 23. A chapter heading is added to Title 6 (commencing with
Section 1350) of Part 4 of Division 2 of the Civil Code, immediately
preceding Section 1368, to read:
CHAPTER 6. TRANSFER OF OWNERSHIP INTERESTS
SEC. 24. Section 1368 of the Civil Code is amended to read:
1368. (a) The owner of a separate interest, other than an owner
subject to the requirements of Section 11018.6 of the Business and
Professions Code, shall, as soon as practicable before transfer of
title to the separate interest or execution of a real property sales
contract therefor, as defined in Section 2985, provide the following
to the prospective purchaser:
(1) A copy of the governing documents of the common interest
development, including any operating rules, and including a copy of
the association's articles of incorporation, or, if not incorporated,
a statement in writing from an authorized representative of the
association that the association is not incorporated.
(2) If there is a restriction in the governing documents limiting
the occupancy, residency, or use of a separate interest on the basis
of age in a manner different from that provided in Section 51.3, a
statement that the restriction is only enforceable to the extent
permitted by Section 51.3 and a statement specifying the applicable
provisions of Section 51.3.
(3) A copy of the most recent documents distributed pursuant to
Section 1365.
(4) A true statement in writing obtained from an authorized
representative of the association as to the amount of the association'
s current regular and special assessments and fees, any assessments
levied upon the owner's interest in the common interest development
that are unpaid on the date of the statement, and any monetary fines
or penalties levied upon the owner's interest and unpaid on the date
of the statement. The statement obtained from an authorized
representative shall also include true information on late charges,
interest, and costs of collection which, as of the date of the
statement, are or may be made a lien upon the owner's interest in a
common interest development pursuant to Section 1367 or 1367.1.
(5) A copy or a summary of any notice previously sent to the owner
pursuant to subdivision (h) of Section 1363 that sets forth any
alleged violation of the governing documents that remains unresolved
at the time of the request. The notice shall not be deemed a waiver
of the association's right to enforce the governing documents against
the owner or the prospective purchaser of the separate interest with
respect to any violation. This paragraph shall not be construed to
require an association to inspect an owner's separate interest.
(6) A copy of the preliminary list of defects provided to each
member of the association pursuant to Section 1375, unless the
association and the builder subsequently enter into a settlement
agreement or otherwise resolve the matter and the association
complies with Section 1375.1. Disclosure of the preliminary list of
defects pursuant to this paragraph shall not waive any privilege
attached to the document. The preliminary list of defects shall also
include a statement that a final determination as to whether the
list of defects is accurate and complete has not been made.
(7) A copy of the latest information provided for in Section
1375.1.
(8) Any change in the association's current regular and special
assessments and fees which have been approved by the association's
board of directors, but have not become due and payable as of the
date disclosure is provided pursuant to this subdivision.
(b) Upon written request, an association shall, within 10 days of
the mailing or delivery of the request, provide the owner of a
separate interest with a copy of the requested items specified in
paragraphs (1) to (8), inclusive, of subdivision (a). The
association may charge a fee for this service, which shall not exceed
the association's reasonable cost to prepare and reproduce the
requested items.
(c) An association shall not impose or collect any assessment,
penalty, or fee in connection with a transfer of title or any other
interest except the association's actual costs to change its records
and that authorized by subdivision (b).
(d) Any person or entity who willfully violates this section shall
be liable to the purchaser of a separate interest which is subject
to this section for actual damages occasioned thereby and, in
addition, shall pay a civil penalty in an amount not to exceed five
hundred dollars ($500). In an action to enforce this liability, the
prevailing party shall be awarded reasonable attorneys' fees.
(e) Nothing in this section affects the validity of title to real
property transferred in violation of this section.
(f) In addition to the requirements of this section, an owner
transferring title to a separate interest shall comply with
applicable requirements of Sections 1133 and 1134.
SEC. 25. A chapter heading is added to Title 6 (commencing with
Section 1350) of Part 4 of Division 2 of the Civil Code, immediately
preceding Section 1368.4, to read:
CHAPTER 7. CIVIL ACTIONS AND LIENS
SEC. 26. A chapter heading is added to Title 6 (commencing with
Section 1350) of Part 4 of Division 2 of the Civil Code, immediately
preceding Section 1370, to read:
CHAPTER 8. CONSTRUCTION OF INSTRUMENTS AND ZONING
SEC. 27. A chapter heading is added to Title 6 (commencing with
Section 1350) of Part 4 of Division 2 of the Civil Code,
immediately preceding Section
1375, to read:
CHAPTER 9. CONSTRUCTION DEFECT LITIGATION
SEC. 28. A chapter heading is added to Title 6 (commencing with
Section 1350) of Part 4 of Division 2 of the Civil Code, immediately
preceding Section 1376, to read:
CHAPTER 10. IMPROVEMENTS
SEC. 29. Section 1373 of the Civil Code is amended to read:
1373.
(a) The following provisions do not apply to a common interest
development that is limited to industrial or commercial uses by
zoning or by its declaration:
(1) Section 1356.
(2) Article 4 (commencing with Section 1357.100) of Chapter 2 of
Title 6 of Part 4 of Division 2 of the Civil Code.
(3) Subdivision (b) of Section 1363.
(4) Section 1365.
(5) Section 1365.5.
(6) Subdivision (b) of Section 1366.
(7) Section 1366.1.
(8) Section 1368.
(9) Article 2 (commencing with Section 1378.010) of Chapter 10 of
Title 6 of Part 4 of Division 2 of the Civil Code.
(10) Article 3 (commencing with Section 1378.050) of Chapter 10 of
Title 6 of Part 4 of Division 2 of the Civil Code.
(b) The Legislature finds that the provisions listed in
subdivision (a) are appropriate to protect purchasers in residential
common interest developments, however, the provisions may not be
necessary to protect purchasers in commercial or industrial
developments since the application of those provisions could result
in unnecessary burdens and costs for these types of developments.
SEC. 30. An article heading is added immediately preceding Section
1376 of the Civil Code, to read:
Article 1. Video or Television Antenna
SEC. 31. Article 2 (commencing with Section 1378.010) is added to
Title 6 of Part 4 of Division 2 of the Civil Code, to read:
Article 2. Review of Proposed Alteration of Separate Interest
1378.010. (a) If an association's governing documents require
that an owner of a separate interest obtain association approval
before altering a separate interest, exclusive use common area, or
part of the common area, this article governs the association's
decisionmaking process.
(b) An association may, by operating rule, preapprove specific
types of alterations. A preapproved alteration is not subject to
review under this article.
(c) A repair is not subject to review under this article if the
board of directors of the association determines that an immediate
repair is necessary to protect public health or safety or to prevent
further property damage, and the repair would not significantly alter
the original design of the property.
1378.020. (a) A decision to approve or disapprove a proposed
alteration of a member's separate interest, an exclusive use common
area, or part of the common area, shall be made in good faith and in
a fair and reasonable manner.
(b) The procedure provided in Article 3 (commencing with Section
1378.050) is fair and reasonable. Other procedures may also be fair
and reasonable under the circumstances.
1378.030. A writ proceeding for review of a decision to approve
or disapprove a proposed alteration of a member's separate interest,
an exclusive use common area, or part of the common area, is subject
to Section 1354.
SEC. 32. Article 3 (commencing with Section 1378.050) is added to
Title 6 of Part 4 of Division 2 of the Civil Code, to read:
Article 3. Optional Procedure
1378.050. Notwithstanding any contrary provision of an
association's governing documents, this article provides a fair and
reasonable procedure that an association may use in reviewing a
member's proposed alteration of a separate interest, an exclusive use
common area, or part of the common area. Use of the procedure is not
mandatory.
1378.060. (a) The definitions in this section govern the
construction of this article.
(b) "Participating member" means an association member who, before
the reviewing body makes its decision on the proposed alteration,
submits to the reviewing body a comment opposed to a proposed
alteration of a separate interest, exclusive use common area, or part
of the common area.
(c) "Reviewing body" means the person or group authorized by an
association's governing documents to approve or disapprove the
alteration of a separate interest, exclusive use common area, or part
of the common area.
1378.070. (a) An association member who proposes to alter a
separate interest shall submit a written application to the reviewing
body. The application shall be in the form specified by the
association. An incomplete application may be returned to the
applicant with an explanation of why the application is incomplete.
No further action is required on an application that is returned as
incomplete.
(b) Within 30 days after receipt of the application, the reviewing
body shall deliver notice of the application to the following
persons:
(1) If the proposed alteration would only alter separate interest
or exclusive use common area property, to members owning separate
interests within 300 feet of, or located within the same building as,
the property that is the subject of the proposed alteration, and to
members having a right to use any exclusive use common area property
that is the subject of the proposed alteration.
(2) If the proposed alteration would alter common area property
other than exclusive use common area property, to all members.
(c) The notice shall include the address or location of the
separate interest, exclusive use common area, or part of the common
area, that is the subject of the application, a description of the
proposed alteration adequate to inform other members of its nature,
and the date after which the reviewing body may make its decision.
(d) Not less than 15 days nor more than 30 days after delivery of
the notice of the application, the reviewing body shall deliver a
written decision to the applicant and to any participating member.
If the reviewing body does not deliver a written decision to the
applicant within 30 days after delivery of the notice of application,
the application is deemed disapproved on the 30th day.
(e) A written decision approving a proposed alteration of a
separate interest, exclusive use common area, or part of the common
area, shall include an explanation of the reason for the decision, a
description of the procedure for appealing the decision, and a
statement indicating whether the reviewing body received any
comments opposing the alteration.
1378.080. (a) Except as provided in subdivision (b), an applicant
may not commence work on an approved alteration of a separate
interest, exclusive use common area, or part of the common area,
until either the period for appeal passes without an appeal being
filed or the approval is upheld on appeal.
(b) If a written decision approving alteration of a separate
interest, exclusive use common area, or part of the common area,
states that no member comments opposing the alteration were received
by the reviewing body before it made its decision, the applicant may
commence work on the approved alteration immediately.
1378.090. (a) An applicant or participating member may appeal the
approval or disapproval of a proposed alteration of a separate
interest, exclusive use common area, or part of the common area, to
the board of directors of the association. The appeal shall be in
writing and shall be delivered to the board of directors within 15
days after the reviewing body's decision is delivered or the proposed
alteration is deemed disapproved.
(b) At least 15 days before hearing the appeal, the board of
directors shall deliver notice of the appeal to the following
persons:
(1) If the proposed alteration would only alter separate interest
or exclusive use common area property, to members owning separate
interests within 300 feet of, or located within the same building as,
the property that is the subject of the proposed alteration, and to
members having a right to use any exclusive use common area property
that is the subject of the proposed alteration.
(2) If the proposed alteration would alter common area property
other than exclusive use common area property, to all members.
(c) The notice of appeal shall state the time and place where the
appeal will be heard.
(d) Within 45 days after receipt of a timely appeal, the board of
directors shall meet and review de novo the proposed alteration that
is the subject of the appeal. Any association member may testify at
the appeal and may submit written materials in support of or in
opposition to the proposed alteration.
(e) Within 15 days after hearing the appeal, the board of
directors shall deliver its decision to the applicant and, if the
appeal is by a person other than the applicant, to that person. The
decision shall be in writing and shall include a statement explaining
the basis for the decision, including reference to facts, standards,
or provisions of the governing documents that support the decision.
1378.100. (a) A decision of the reviewing body made under Section
1378.070 is not subject to judicial review.
(b) Any member may seek judicial review of a decision of the board
of directors of the association made under Section 1378.090.
Judicial review may be by writ of administrative mandamus, pursuant
to Section 1094.5 of the Code of Civil Procedure.
1378.110. In making a decision to approve or disapprove a
proposed alteration of a member's separate interest, an exclusive use
common area, or part of the common area, the reviewing body or board
of directors may consider any relevant information. The reviewing
body or board of directors is not required to consider information
other than that provided to the reviewing body or board of directors.
1378.120. A document that is required to be delivered pursuant to
this article is subject to Section 1350.7.