SB 853 - Association Architectural Committee Approvals and Public Laws

By: Martin Lee
Feldsott & Lee
A Law Corporation

The Legislature has amended Civil Code §1378 in the Davis-Stirling Common Interest Development Act (Civil Code §1350) to clarify what architectural review committees are to do when there is a conflict between modifications a member seeks approval for and public law. This new amendment takes effect January 1, 2006. Current Civil Code §1378(a)(3) and (b), effective until December 31, 2005, provides:

“(a)(3) A decision on a proposed change shall be consistent with any governing provision of law, including, but not limited to, the Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3 of Title 2 of the Government Code).

“(b) Nothing in this section authorizes a physical change to the common area in a manner that is inconsistent with an association’s governing documents or governing law.”

The Legislature, by virtue of its amendments to Civil Code §1378, has now changed these two provisions significantly so that, effective January 1, 2006, they will read as follows:

“(a)(3) Notwithstanding a contrary provision of the governing documents, a decision on a proposed change may not violate any governing provision of law, including, but not limited to, the Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3 of Title 2 of the Government Code), or a building code or other applicable law governing land use or public safety.

“(b) Nothing in this section authorizes a physical change to the common area in a manner that is inconsistent with an association’s governing documents, unless the change is required by law.” (Emphasis supplied).

These amendments could, indeed, be quite significant for homeowners associations. For instance, in some (if not most) common interest developments, the CC&Rs provide that the architectural committee, in approving or disapproving plans, need not be concerned with engineering, building codes, land use regulations, etc. In most homeowners associations, the architectural review provisions usually limit the association’s review in approving or disapproving architectural modifications to aesthetic considerations alone. These new provisions in Civil Code §1378 seem to quite extensively broaden an architectural committee’s oversight and review functions and indicate that architectural committees may now need to concern themselves with engineering issues, building and safety problems, building codes and similar such problems, despite what the association’s governing documents say. This is a substantial expansion of responsibility for architectural committees in homeowners associations and in planned developments (where substantial structural modifications may, with architectural approval, often be effected). It may behoove homeowners associations in future to have specialists on retainer to assist their architectural committees in evaluating applications to make sure proposed modifications do not contravene any “building codes or other applicable law governing land use or public safety”. #