2009 California Civil Code - Section 1355-1357 :: Article 3. Amendment

CIVIL CODE
SECTION 1355-1357

1355.  (a) The declaration may be amended pursuant to the governing
documents or this title. Except as provided in Section 1356, an
amendment is effective after (1) the approval of the percentage of
owners required by the governing documents has been given, (2) that
fact has been certified in a writing executed and acknowledged by the
officer designated in the declaration or by the association for that
purpose, or if no one is designated, by the president of the
association, and (3) that writing has been recorded in each county in
which a portion of the common interest development is located.
   (b) Except to the extent that a declaration provides by its
express terms that it is not amendable, in whole or in part, a
declaration which fails to include provisions permitting its
amendment at all times during its existence may be amended at any
time. For purposes of this subdivision, an amendment is only
effective after (1) the proposed amendment has been distributed to
all of the owners of separate interests in the common interest
development by first-class mail postage prepaid or personal delivery
not less than 15 days and not more than 60 days prior to any approval
being solicited; (2) the approval of owners representing more than
50 percent, or any higher percentage required by the declaration for
the approval of an amendment to the declaration, of the separate
interests in the common interest development has been given, and that
fact has been certified in a writing, executed and acknowledged by
an officer of the association; and (3) the amendment has been
recorded in each county in which a portion of the common interest
development is located. A copy of any amendment adopted pursuant to
this subdivision shall be distributed by first-class mail postage
prepaid or personal delivery to all of the owners of separate
interest immediately upon its recordation.

1355.5.  (a) Notwithstanding any provision of the governing
documents of a common interest development to the contrary, the board
of directors of the association may, after the developer of the
common interest development has completed construction of the
development, has terminated construction activities, and has
terminated his or her marketing activities for the sale, lease, or
other disposition of separate interests within the development, adopt
an amendment deleting from any of the governing documents any
provision which is unequivocally designed and intended, or which by
its nature can only have been designed or intended, to facilitate the
developer in completing the construction or marketing of the
development. However, provisions of the governing documents relative
to a particular construction or marketing phase of the development
may not be deleted under the authorization of this subdivision until
that construction or marketing phase has been completed.
   (b) The provisions which may be deleted by action of the board
shall be limited to those which provide for access by the developer
over or across the common area for the purposes of (a) completion of
construction of the development, and (b) the erection, construction,
or maintenance of structures or other facilities designed to
facilitate the completion of construction or marketing of separate
interests.
   (c) At least 30 days prior to taking action pursuant to
subdivision (a), the board of directors of the association shall mail
to all owners of the separate interests, by first-class mail, (1) a
copy of all amendments to the governing documents proposed to be
adopted under subdivision (a) and (2) a notice of the time, date, and
place the board of directors will consider adoption of the
amendments. The board of directors of an association may consider
adoption of amendments to the governing documents pursuant to
subdivision (a) only at a meeting which is open to all owners of the
separate interests in the common interest development, who shall be
given opportunity to make comments thereon. All deliberations of the
board of directors on any action proposed under subdivision (a) shall
only be conducted in such an open meeting.
   (d) The board of directors of the association may not amend the
governing documents pursuant to this section without the approval of
the owners, casting a majority of the votes at a meeting or election
of the association constituting a quorum and conducted in accordance
with Chapter 5 (commencing with Section 7510) of Part 3 of Division 2
of Title 1 of, and Section 7613 of, the Corporations Code. For the
purposes of this section, "quorum" means more than 50 percent of the
owners who own no more than two separate interests in the
development.

1356.  (a) If in order to amend a declaration, the declaration
requires owners having more than 50 percent of the votes in the
association, in a single class voting structure, or owners having
more than 50 percent of the votes in more than one class in a voting
structure with more than one class, to vote in favor of the
amendment, the association, or any owner of a separate interest, may
petition the superior court of the county in which the common
interest development is located for an order reducing the percentage
of the affirmative votes necessary for such an amendment. The
petition shall describe the effort that has been made to solicit
approval of the association members in the manner provided in the
declaration, the number of affirmative and negative votes actually
received, the number or percentage of affirmative votes required to
effect the amendment in accordance with the existing declaration, and
other matters the petitioner considers relevant to the court's
determination. The petition shall also contain, as exhibits thereto,
copies of all of the following:
   (1) The governing documents.
   (2) A complete text of the amendment.
   (3) Copies of any notice and solicitation materials utilized in
the solicitation of owner approvals.
   (4) A short explanation of the reason for the amendment.
   (5) Any other documentation relevant to the court's determination.
   (b) Upon filing the petition, the court shall set the matter for
hearing and issue an ex parte order setting forth the manner in which
notice shall be given.
   (c) The court may, but shall not be required to, grant the
petition if it finds all of the following:
   (1) The petitioner has given not less than 15 days written notice
of the court hearing to all members of the association, to any
mortgagee of a mortgage or beneficiary of a deed of trust who is
entitled to notice under the terms of the declaration, and to the
city, county, or city and county in which the common interest
development is located that is entitled to notice under the terms of
the declaration.
   (2) Balloting on the proposed amendment was conducted in
accordance with all applicable provisions of the governing documents.
   (3) A reasonably diligent effort was made to permit all eligible
members to vote on the proposed amendment.
   (4) Owners having more than 50 percent of the votes, in a single
class voting structure, voted in favor of the amendment. In a voting
structure with more than one class, where the declaration requires a
majority of more than one class to vote in favor of the amendment,
owners having more than 50 percent of the votes of each class
required by the declaration to vote in favor of the amendment voted
in favor of the amendment.
   (5) The amendment is reasonable.
   (6) Granting the petition is not improper for any reason stated in
subdivision (e).
   (d) If the court makes the findings required by subdivision (c),
any order issued pursuant to this section may confirm the amendment
as being validly approved on the basis of the affirmative votes
actually received during the balloting period or the order may
dispense with any requirement relating to quorums or to the number or
percentage of votes needed for approval of the amendment that would
otherwise exist under the governing documents.
   (e) Subdivisions (a) to (d), inclusive, notwithstanding, the court
shall not be empowered by this section to approve any amendment to
the declaration that:
   (1) Would change provisions in the declaration requiring the
approval of owners having more than 50 percent of the votes in more
than one class to vote in favor of an amendment, unless owners having
more than 50 percent of the votes in each affected class approved
the amendment.
   (2) Would eliminate any special rights, preferences, or privileges
designated in the declaration as belonging to the declarant, without
the consent of the declarant.
   (3) Would impair the security interest of a mortgagee of a
mortgage or the beneficiary of a deed of trust without the approval
of the percentage of the mortgagees and beneficiaries specified in
the declaration, if the declaration requires the approval of a
specified percentage of the mortgagees and beneficiaries.
   (f) An amendment is not effective pursuant to this section until
the court order and amendment have been recorded in every county in
which a portion of the common interest development is located. The
amendment may be acknowledged by, and the court order and amendment
may be recorded by, any person designated in the declaration or by
the association for that purpose, or if no one is designated for that
purpose, by the president of the association. Upon recordation of
the amendment and court order, the declaration, as amended in
accordance with this section, shall have the same force and effect as
if the amendment were adopted in compliance with every requirement
imposed by the governing documents.
   (g) Within a reasonable time after the amendment is recorded the
association shall mail a copy of the amendment to each member of the
association, together with a statement that the amendment has been
recorded.

1357.  (a) The Legislature finds that there are common interest
developments that have been created with deed restrictions which do
not provide a means for the property owners to extend the term of the
declaration. The Legislature further finds that covenants and
restrictions, contained in the declaration, are an appropriate method
for protecting the common plan of developments and to provide for a
mechanism for financial support for the upkeep of common areas
including, but not limited to, roofs, roads, heating systems, and
recreational facilities. If declarations terminate prematurely,
common interest developments may deteriorate and the housing supply
of affordable units could be impacted adversely.
   The Legislature further finds and declares that it is in the
public interest to provide a vehicle for extending the term of the
declaration if owners having more than 50 percent of the votes in the
association choose to do so.
   (b) A declaration which specifies a termination date, but which
contains no provision for extension of the termination date, may be
extended by the approval of owners having more than 50 percent of the
votes in the association or any greater percentage specified in the
declaration for an amendment thereto. If the approval of owners
having more than 50 percent of the votes in the association is
required to amend the declaration, the term of the declaration may be
extended in accordance with Section 1356.
   (c) Any amendment to a declaration made in accordance with
subdivision (b) shall become effective upon recordation in accordance
with Section 1355.
   (d) No single extension of the terms of the declaration made
pursuant to this section shall exceed the initial term of the
declaration or 20 years, whichever is less. However, more than one
extension may occur pursuant to this section.


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