By Susan M. Hawks McClintic, Esq.
We are all being forced to address issues and make decisions that even a month ago, we did not imagine. Boards of directors and managers are put in the position of responding to Federal, state and local government orders that impact their communities while trying to make decisions for the overall well-being of the residents of their communities.
In responding to these government orders and the COVID-19 pandemic, does the board need to adopt rules to address changes in common area use, conduct of meetings and other related issues? We believe the answer depends on whether the board is responding to mandatory government orders or taking discretionary actions.
Since the shelter-in-place order from Governor Newsom went into effect on Thursday, March 19, 2020 and the various orders from counties and cities have been issued, some California community associations have either elected or been ordered to close some or all of their common area amenities during this pandemic.
If your county has ordered your community association to close some or even all of your association’s common area amenities, then we do not believe that your community association is required to adopt emergency rules to comply with these closures because they are required by law and the board has no discretion regarding those closures. (Civil Code section 4355(b)(4)). Note that if the board wants to adopt rules to address the closures, the board can do so under Civil Code section 4360(d) without following the usual process of notifying the owners of the proposed rules and allowing a comment period.
If your community association has taken a proactive approach and closed common area facilities that are not required to be closed under a government order or made other changes in use of the common area in an attempt to protect the health and well-being of the community’s residents, then we recommend adopting an emergency rule regarding those discretionary common area closures or changes in use. This same approach should be applied to any other discretionary emergency rules your board makes in response to this COVID-19 pandemic.
Civil Code section 4360(d) of the Davis Stirling Common Interest Development Act allows community associations to adopt emergency rules without first receiving member comments if “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.” The caveat is that an emergency rule is only effective for 120 days (unless the rule provides for a shorter period) AND the emergency rule cannot be readopted under the same procedure.
If your community association is contemplating adopting such a discretionary emergency rule, then the board should meet (via emergency meeting procedures, if necessary) to determine whether the proposed rule must be adopted to address an imminent threat to public health and safety. If the answer is “yes”, then the rule must be drafted and the community notified of the new emergency rule. If the board anticipates that the emergency rule must be effective for longer than 120 days, then during that 120-day period, the association should readopt the emergency rule using the rule-making procedures outlined in Civil Code section 4360(a)-(c). (See below.)
Civil Code §4360. Rule-Making Procedures
(a) The board shall provide general notice pursuant to Section 4045 of a proposed rule change at least 28 days before making the rule change. The notice shall include the text of the proposed rule change and a description of the purpose and effect of the proposed rule change. Notice is not required under this subdivision if the board 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 board meeting, 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 shall deliver general notice pursuant to Section 4045 of the rule change. If the rule change was an emergency rule change made under subdivision (d), the notice shall include the text of the rule change, a description of the purpose and effect of the rule change, and the date that the rule change expires.
(d) If the board 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.
Keywords: COVID-19, Coronavirus