COMMUNITY CRISIS RESPONSE Putting Association Emergency Rules Into Action

By Matt Ober, Esq.

WHAT IS THE EMERGENCY?

In any community association emergency, the HOA will look to management first as its guide as to what emergency relief is needed both in the short term and for the long haul. The first step for management is to identify the emergency and its impact on the common areas and residents. Whether it’s a local emergency involving a toxic spill or a statewide drought, management must evaluate the impact of the emergency on the association. In the case of a COVID-type outbreak or a wildfire, a community manager will need an emergency action plan which must include rule enforcement in an emergency or crisis.

Under the Davis-Stirling Common Interest Development Act (“DS Act”), operating rule adoption or amendment, requires member notice and a 28-day review and comment period before the board approves the rule change. Obviously, where there is an imminent threat to health or safety, an association cannot wait 28 days to address it. Therefore, in an emergency, the DS Act provides an exception allowing for immediate action to address the crisis in the moment.

Civil Code § 4360 (d) provides a board with essential emergency rule amendment and adoption authority without notice or a 28-day review and comment period. Rule adoption under this emergency procedure requires a board determination of 1) an imminent threat to public health or safety, or, 2) an imminent risk of substantial economic loss to the association. The emergency rule is effective for a maximum of 120 days.

Note, however, that an emergency rule adopted pursuant to Civil Code § 4360 (d) cannot be readopted. If the association anticipates that the emergency circumstances will extend beyond 120 days (for example, pool-use rules during the COVID years), the same rule should also be channeled through the general 28-day review and comment process and adopted by the board as a permanent rule until repealed when the emergency condition no longer exists.

DO WE REALLY NEED A RULE FOR THIS?

Whether in an emergency or not, rules for the sake of rules are ineffective. All too often we find community rules contain duplicative rules or rules that address conditions no longer present in the community. A rule making process must start with a determination of whether the community’s existing governing documents address the emergency situation. Not every emergency requires a rule change. After identifying the emergency and assessing the impact on the community, and before creating a new rule, review the CC&Rs and bylaws to determine the extent of the board’s authority over a given emergency situation. Often, the governing documents provide the board or association with broad authority to act in a variety of circumstances. Of course, unless it is clear, seek advice from legal counsel as to whether the governing documents authorize the needed action or if an emergency rule change is required.

DRAFTING WITH CLARITY; TRANSPARENCY MATTERS

A well-drafted emergency rule leaves no room for misinterpretation and clearly addresses the imminent threat while staying within the board’s authority under Civil Code § 4360(d). The emergency rule must be drafted with clarity to ensure it is understood and easily followed. Leave no room for uncertainty or “creative interpretation.” Remember, the emergency rule is addressing a threat to health and safety or an imminent risk of substantial loss to the association. It must be clear, concise and leave nothing to doubt. Use simple, direct language and include the following critical elements of rulemaking:

PURPOSE | What conditions, circumstance or issue is being addressed;

AUTHORITY | State the board’s authority for the emergency rule;

SCOPE | How long will the rule be in effect and what areas or facilities are covered;

SPECIFICS | What is prohibited or required; who must comply; and include all necessary details for compliance.

In order to obtain immediate and communitywide acceptance of the emergency rule, explain the emergency circumstances justifying the rule and why the rule is necessary. Of course, before putting the rule in place, have legal counsel review it for clarity, enforceability and to ensure consistency with the authority under the Governing Documents.

When The Smoke Clears

As important as it is that the emergency rule is in place immediately to address the emergency, the rule should be repealed once the emergency has been resolved. Assess and document that the emergency has ended. Have relevant experts confirmed the threat has been resolved or that the emergency has ended? Document the board’s findings that the emergency circumstances have ended and have the board move to repeal the emergency rule. Notify all members promptly that the rule is no longer in effect and why. And of course, thank members for their cooperation during the emergency.

Leading Through Crisis

Emergency rulemaking authority serves as a critical tool for association boards facing imminent threats to their communities. While this power should be exercised judiciously, boards that follow proper procedures can effectively protect residents and property when time is of the essence. By understanding the requirements of Civil Code § 4360(d), documenting thoroughly, communicating transparently and promptly ending emergency measures when the crisis passes, boards demonstrate responsible leadership that balances urgent action with good governance principles. The true measure of a board isn’t just how it manages day-to-day operations, but how it responds when community safety and welfare are at risk. Utilizing the above process, community management can ensure that emergency rules, when implemented properly, showcase a board’s commitment to its fundamental duty: protecting the community it serves.

Matt Ober, Esq., a partner at Richardson | Ober, has 35 years of experience serving as Community Association General Counsel throughout California.