Special Election Failed-Now Board wants to Petition the Courts

Started by LoriH3 • 11 replies • 1912 views

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LoriH3 (California)
Posts: 20

Posted:

Our Board of Directors held a special election to change the CC&R's regarding parking.

Our development has 252 homes. 210 votes were turned in. They needed 189 to pass the change. They received 183. The board immediately told the attendees that they were going to petition the court to have the rule amended since it was so close.

Can they do that?

Also, the board members went door to door and collected ballots. Is that not called Electioneering?

I am in California if it makes a difference?

RichardP13 (California)
Posts: 1,767

Posted:

This might help you.

http://www.davis-stirling.com/MainIndex/CourtApprovedCCRs/tabid/1318/Default.aspx

As far as the electioneering question, IMO, if they were doing this to gather votes for an election in which their names were on the ballot, then I would say yes. In this instance, the Board is collecting ballots on an initiative, and IMO they should be able to do that.

LoriH3 (California)
Posts: 20

Posted:

Thank you Richard. I did read Davis-Stirling, it has become my bible so to speak. It appears they can petition to have the percentage lowered but it does not indicate if they can have the court approve the amendment.

My only issue with the Board collecting ballots on an initiative is that this board has said "We will do whatever we want" and I question if these ballots were actually filled out by the owners. They could have proxied votes but they did not do that (they have in the past).

JanetB2 (Colorado)
Posts: 4,219

Posted:

Hi Lori:

Here is the actual Civil Code:
http://www.davis-stirling.com/MainIndex/Statutes/CivilCode1356/tabid/860/Default.aspx

According to your numbers posted apparently your documents require 75% approval to amend the CCR’s. Per the code … did over 50% agree or disagree per the vote? If over 50% agreed to the amendment, then the court could potentially be involved.

Here are a few items to take note regarding and/or must be met:

Civil Code §1356. Petitioning Court to Amend CC&Rs.

(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:

(c) The court may, but shall not be required to, grant the petition if it finds all of the following:

(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.

If you read this code it appears the court can approve if certain criteria is met.

RichardP13 (California)
Posts: 1,767

Posted:

In answer to the first part, the court can approve the amendment based on the petition. It will not change the CCR's percentage in the future. This is considered a one-time only deal.

In California, we have a secret ballot in which the ballots go into one envelope and then another envelope which is then signed. The address can be already filled out for them, but the owner MUST signed their ballot. It would be up to the inspector(s) of elections to verify the signatures. We don't use proxies any more.

LoriH3 (California)
Posts: 20

Posted:

Our inspector(s) are members of the property management company. They do not verify signatures. They only verify names and addresses. Many believe that the board has tampered with this election in order to get this amendment changed. Over 50% of the ballots were collected by the board. There were instances where the board came to a homeowners house and asked them if they voted. The person said yes and the board member told him his ballot was lost. How would a board member know that before an election. And what ballot was actually counted. Several homeowners indicated that they were asked if they would sign the outside envelope and they would vote for them (without a proxy). See what I mean. We have a very corrupt board who is hell bent in changing rules that they do not want to comply with.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

We had to sign 2 papers when we changed our CC&R's. 1 was for the actual vote for the changes. The other was to give up our rights to meet in a "Special meeting". This way the HOA could go door to door and catch owners as they could. It also allowed us to send mail to those owners that were out of town/state.

Changing the CC&R's may be a bit overkill for the situation. If your going to change your CC&R's then UPDATE the whole thing at once every 5 years. Don't keep changing 1 rule at a time. This is expensive. Plus it may be a good time to reduce the 90% vote down to 75% of the membership to pass changes.

It's much easier to change the By-laws. They don't necessarily have to be filed. Plus they usually take less votes of the HOA membership to pass. Another option is to put the change in the MEETING NOTES. The HOA then can send out a memo to ALL the owner's letting them know what the new rule is.

The HOA can change the rules within themselves of what they want to live under. There's other options than changing your CC&R's. Maybe check into those.

Former HOA President

DanielH1 (California)
Posts: 482

Posted:

The integrity of the Board and the election process is a different issue than whether they can petition the court.

If you have issues with your Board, you have all the usual remedies: run yourself, vote in somebody better at the next election, petition for a recall and/or sue.

LoriH3 (California)
Posts: 20

Posted:

I do not want to change my CC&R's. I am one of the original owners who bought in the development for the CC&R's. Our Bylaws require the 90% and our CCR's require the 75%. So it would not be easier to change the bylaws and the bylaws do not address this particular amendment.

This whole petition thing has arisen because they did not get their way. They are very juvenile.

LoriH3 (California)
Posts: 20

Posted:

I had originally asked two questions 1) whether they can petition the court which I have found out that they can. 2) whether you can collect ballots on a secret ballot election.

In regards to the issue of the board; I was on the board and unfortunately it is not something that I desire to do again in this development. It was the most stressful thing I ever experienced due to the people who currently sit on the board. We do have someone who is willing to run against them and we are in the process of helping him get going. The thought of recall is something being considered and I do not want to spend my money suing a corporation.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Hi Lori:

Here is the Civil Code:
https://www.davis-stirling.com/Statutes/CivilCode136303/tabid/877/Default.aspx

Civil Code §1363.03. Election Procedures, Secret Ballots, Inspectors of Election.

Which does state:

(3) The inspector or inspectors of election shall do all of the following:

(C) Receive ballots.

RichardP13 (California)
Posts: 1,767

Posted:

Last July we amended our Bylaws. We had three inspectors of elections (all from the community) 18 of us, in pairs, went door to door collecting ballots, but immediately turned the ballots over to the inspectors who were walking with us. If the Board took the ballots home with them before turning them in, that can be perceived as tampering with the election, IMO

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