Extension or Ammendment?

Okay heres the deal the original CC&R's were do to expire on 12-31-2010 and continue until 12-31-2025 if they were approved by 55% of the Members.

The Board sent out a ballot that gave two choices:

1. Extend the CC&R's until 12-31-2013

2. Let the CC&R's expire.

The board kept telling that they could make changes to the CC&R's during the next 3 years to make members happier.

Option #1 passed by 2 votes but there are 17 questionable votes in the passing votes.

A lot of members believe that this was an ammendment to the CC&R's and not and extension. An ammendment would require 75%.

Tell me what you think.

Pat,

Without seeing the exact language in your CC&R's I can explain how things typically happen:

1. CC&R's may be amended at any time providing the procedure outlined in the document is properly followed and the amendment is properly recorded. The Board typically does not make the changes to the documents. They, or the membership, propose a change and the membership votes on it. Then the Board must properly draw up a document showing the amendment and record it (typically at the county court house).

2. CC&R's typically run with the land and are self renewing. The language in the document is usually something along the lines:

The covenants and restrictions of this Declaration shall run and bind with the land . . . for a term of x years from the date the Declaration is recorded, after which said covenants shall be automatically extended for a successive periods of x years.

If you can provide the language of that section of your document you will probably get better advise.

Tim

Here it is the exact wording from the CC&R's

(d) At any time prior to December 31, 2010, the owners of record of lots constituting not less than 55% of the total number of lots in the plat maps of the land may extend the term of the provisions of this declaration. Said term may be extended to December 31, 2025 by executing and acknowledging a written instrument of extension to that effect so as to entitle the same to be recorded in deed records of Clackamas County, Oregon and by causing the same to be recorded.

Back to your original question,

Based on the language you provided from your governing documents and from your initial post, it sounds like the Board was properly calling for a vote to extend the current CC&Rs. Per your governing document, this only requires 55% of the total number of lots.

I emphasized that portion because this is different from other typical vote counts. Those words indicate that ALL members, even those who were not current with their assessments, should have the right to vote on this issue.

Therefore: If the number of lots = 100 then you would need a minimum of 55 votes in favor. (vs. 55% of the ballots)

If you have concerns on the vote, you would have the option to:

a) View the voting documents (proxies, actual ballots, tally sheets)
b) Challenge the vote in a court of law for a procedural issue (quorum requirements, notice requirements, etc.) or for issues discovered in the voting documents.

As I stated earlier, the document can be amended at anytime unless there is wording contained within it stating something different.

Tim

Susan,

Excellent point. Based on the language, it appears that after 2025 they expire unless the CC&Rs are amended to allow future extensions.

I'm sure that that would have to be tested in court - but an excellent point.

Tim