Commonsense Rulemaking for Association Boards

By Matt Ober, Esq., CCAL

This article first appeared in the ECHO Journal | June 2025 Issue here.

When was the last time you dusted off your HOA’s community rules and regulations? Are they relevant? Do they address the needs of the community and its residents? Do they address current issues? Or are they outdated, ambiguous, or difficult to understand and enforce? And are they understandable? How do they apply? Are they consistent with the governing documents and applicable law? Finally, are they punitive in nature, or do they encourage compliance? These are some of the questions an HOA board should be asking from time to time in order to maintain a fair and effective rule enforcement process.

What Makes a Valid Rule? 

The Davis-Stirling Common Interest Development Act provides a basic framework for adopting valid, enforceable rules. According to Civil Code Section 4350, an operating rule is valid and enforceable only if all the following requirements are satisfied:

1. The rule is in writing. The rule is within the authority of the board conferred by law or by the declaration, articles of incorporation or association, or bylaws of the association.
2. The rule does not conflict with governing law and the declaration, articles of incorporation or association, or bylaws of the association.
3. The rule is adopted, amended, or repealed in good faith and in substantial compliance with the requirements of this article.
4. The rule is reasonable.

Association rules are considered part of an association’s “governing documents.” Unlike covenants, conditions, and restrictions (CC&Rs), rules do not require member approval to be adopted or amended, since a board’s authority to adopt rules without member approval is provided in either the CC&Rs or the bylaws. The board’s authority, however, is not without limitations. Civil Code Sections 4340 through 4370 provide a statutory framework for how certain types of rules (defined as operating rules) are adopted by common interest development boards of directors.

Operating Rules Defined

The Civil Code rule adoption procedure applies to rules regulating use of the units or lots and the common area (or exclusive-use common areas) and to rules regarding member rule compliance and assessment collection matters. The procedure does not apply to maintenance decisions, decisions affecting

less than all of the members, the amounts of special or regular assessments, or rules simply restating the law or the governing documents. When in doubt about whether a proposed rule is an operating rule, caution and transparency should always be used, and the rule adoption procedure below should apply:

• Before the board can pass, delete, or change an operating rule covered by the Civil Code, members must be given at least 28 days’ advance written notice, with a copy of the actual rule change and a statement as to the purpose and effect of the change.
• Prior to the board’s adoption or modification of a rule or rule change, the board must provide
  an opportunity for the members to comment about the proposed rule change, either at the open board meeting where the rule will be adopted or in writing prior to the meeting.
• The members must be notified in writing within fifteen (15) days following the board’s adoption of a rule change.

Note: The Civil Code provides an emergency exception to the operating rule procedure when immediate action is necessary to avoid imminent threat to health or safety or to prevent substantial economic loss. This exception was particularly helpful during COVID lockdowns.

Guidelines for Creating Effective HOA Rules

While following the operating rulemaking procedure is required, effective rulemaking does not end with Civil Code compliance.

Having rules for the sake of rules is an ineffective way to govern. If residents do not understand or know about the rules and how they apply, and/or if the board does not adopt a fair and consistent rule enforcement procedure, the community will struggle with enforcement. Creating effective rules for a homeowners association requires more than just following legal procedures. Below are some practical guidelines to help boards develop rules that serve the community well.

1. What Is the Rule For?

• Address Specific Problems: Create rules to solve actual problems, not anticipated ones. Rules should respond to real issues that affect community living.
• Define the Objective: The board should be clear about what the rule aims to accomplish. Ask, “What problem are we trying to solve?” and “Is a rule the best way to solve it?”
• Consider Alternatives: Sometimes education, communication, or community initiatives
  can address issues more effectively than creating new rules.

If the board cannot explain the reason for the rule, chances are it is not a good rule and won’t be enforced.

2. Keep It Simple

• Use Plain Language: The rule should avoid legal jargon and complex wording. Rules should be easily understood by all residents.
• Be Specific: The rule should clearly state what is prohibited or required. Vague rules lead to inconsistent enforcement and resident frustration.
• Focus on Results: Where possible, the rule should focus on the desired outcome rather than prescribing specific methods or imposing fines.

3. Is It Enforceable?

• Create Practical Rules: If the rule cannot be reasonably enforced, it should not
  be adopted. Unenforced rules undermine the entire rulebook. If the board does not understand the rule, the residents will not either.
• Consider HOA Resources: The board should evaluate whether it has the means to monitor and enforce rules fairly and consistently.
• Plan Enforcement Procedures: Rules should have clear and fair procedures for addressing violations before being implemented.

4. Balance Community Needs with Individual Desires

• Minimize the Restrictiveness of Rules: It is most efficient to have only the rules the community needs at the time. Excessive rules, duplicative rules, or inapplicable rules can create a restrictive atmosphere.

• Respect Property Rights: Rules should balance community aesthetics
  and standards with the homeowners’ right to enjoy their property.
• Consider Diverse Perspectives: HOA communities are composed of diverse people. The board should consider the diversity of the community (such as age, family structures, and lifestyles) when rulemaking.
• Consider Compromise: Where a rule prohibits
  or impacts residential enjoyment, the board should consider ways to mitigate that impact to encourage compliance. For example, if the rules prohibit barbecues on balconies, the board may consider providing common area barbecues for community use as an alternative. If the board bans barbecues on balconies without providing an alternative, it may invite resistance.

5. Test Before Adopting

• Ask Critical Questions: Will the rule address a particular community issue or problem? Is it fair? Is it reasonable? Is it enforceable?
• Consider Unintended Consequences: Has the board considered how the rule might inadvertently affect different residents or create new problems?
• Get Informal Feedback:
  The Civil Code operating rules procedure includes a member input component. However, before adopting
  or amending any rule, the board should take the temperature of the residents. Proposed rules should be discussed with a diverse group of homeowners in order to gauge their reactions. Change is often difficult, and residents tend to resist. A significant rule change, such as a guest parking rule without advance notice and community engagement, will likely trigger a backlash or result in widespread noncompliance. Involving the community in the rulemaking discussion will help gain resident buy-in.

6. Communicate Effectively

• Explain the “Why”: When introducing a new rule, clearly communicate the problem it addresses and how it benefits the community.
• Create Educational Materials: Develop FAQs, examples, or visual cues to help residents understand and comply with complex rules. Use Multiple Channels: Share information through newsletters, emails, community meetings, the association website, etc. To encourage compliance, remind residents throughout the year of newly adopted rules or rules that have been changed. For example, write a newsletter article or website notice about the new/changed pool rules before reopening the pool for the summer.

7. Review and Revise Regularly

Rules are fluid and designed to be revised as the needs of a community change. Rules adopted 20 years ago may no longer apply or may address conditions that no longer exist. Consider the following:

• Schedule Periodic Reviews: Set a regular schedule to review all rules to ensure they remain relevant.
• Remove Outdated Rules: Don’t hesitate to eliminate rules that no longer serve a useful purpose.
• Learn from Experience: Adjust rules based on implementation challenges and community feedback.

8. Consider the Big Picture

• Maintain Consistency: Ensure that new rules align with existing rules, CC&Rs, and the overall vision for the community.
• Think Long Term: Rules should address current needs while supporting
  the long-term health and harmony of the community.
• Focus on Community Values: The best rules reflect and reinforce the values that make the community special.

Good governance is about creating an environment where neighbors can live together harmoniously, not about controlling every aspect of community life. The most successful communities find a balance between necessary governance and the freedom that makes a community feel like home.