Can BOD Amend Declaration without Vote?

Hello,
I am in Florida and live in a gated community (private roads).

Our HOA recently emailed out proposed parking restrictions. These restrictions would prohibit parking on the street. Any cars on the street would be subject to towing. The rules have not gone into effect yet.

I'm wondering if our HOA even has the authority to implement this policy.

Per our declaration, cars can be parked in driveways, garages, or on the street. The only place we can't park is in the grass or on the sidewalk.

Our declaration also states that any ammendment to the declaration must be approved by a vote of at least 75% of the lot owners.

Does our HOA have any authority to implement this policy without asking us (the homeowners) to vote?

Here are the pertinent items from our declaration:

Article VIII - Restrictions:
Section 2. Vehicular Parking and Inoperative Vehicles. No vehicle shall be parked on any part of the Declaration Property, except on paved streets, paved driveways, or garages.

Article XI - General Provisions:
Section 3. Amendment. The covenants and restrictions of this Declaration shall run with and bind the land, for a term of twenty (20) years from the date this Declaration is recorded, after which time they shall be automatically extended for successive periods of ten (10) years. Except as provided for in Article XI herein, this Declaration may only be amended by an instrument signed by not less than seventy-five percent (75%) of the Lot Owners.

Can the Board of Directors legally change our declaration's parking restrictions without a 75% vote?

Any help is GREATLY appreciated.

RogerB,
Thank for for your response.

This was my interpretation of the declaration as well. I don't see how the HOA has any authority to implement rules without the vote of the homeowners.

I am going to fire off a letter right now!

The board also may just be reinterating a higher law, i.e. local municipality, that forbids parking on the streets. Firetrucks and emergency vehicles must have clear access down all streets.

Did you ask WHY they are reversing one of their own rules?

I believe that the board can pass rules but not change Articles of the CCRs with out the associations vote of 75%. Restricting parking when your Decloration says parkingin the streett or drive is allowed must be done with a vote. That is an ammendment. They can add a rule like if you park in the street you cant have a car sit with out moving, longer that 7 days....etc....that would no longer be a "parking" but a storage and storing cars on the street beyond seven days with out moving constitues a violation by rule. That is how we do it. They cant oppose your Article as it stands unless you vote. Sorry BOD! Dont let them get away with it, that is wrong.

I need to clarify that the statute also states "or required by law"; therefore, as both Susan and Melissa pointed out you need to insure there has not recently been a new local city ordinance passed to disallow parking on the street.

I looked up the FL statutes and it says that amendments must be approved by a two-thirds vote, not a 75% vote. See part (b).

There was once a discussion here about what takes precedence when an association and state law have different requirements for amending a governing document. I think the conclusion was that an association could use a lower percentage than state law, but not a higher one - which your association does. I'm sure that someone will remember this and correct me if I'm wrong.

If that's correct, it's something you might want to bring up.

1) QUORUM; AMENDMENTS.--

(a) Unless a lower number is provided in the bylaws, the percentage of voting interests required to constitute a quorum at a meeting of the members shall be 30 percent of the total voting interests. Unless otherwise provided in this chapter or in the articles of incorporation or bylaws, decisions that require a vote of the members must be made by the concurrence of at least a majority of the voting interests present, in person or by proxy, at a meeting at which a quorum has been attained.

(b) Unless otherwise provided in the governing documents or required by law, and other than those matters set forth in paragraph (c), any governing document of an association may be amended by the affirmative vote of two-thirds of the voting interests of the association.

(c) Unless otherwise provided in the governing documents as originally recorded or permitted by this chapter or chapter 617, an amendment may not materially and adversely alter the proportionate voting interest appurtenant to a parcel or increase the proportion or percentage by which a parcel shares in the common expenses of the association unless the record parcel owner and all record owners of liens on the parcels join in the execution of the amendment. For purposes of this section, a change in quorum requirements is not an alteration of voting interests. The merger or consolidation of one or more associations under a plan of merger or consolidation under chapter 607 or chapter 617 shall not be considered a material or adverse alteration of the proportionate voting interest appurtenant to a parcel.

Pamela,

The first word in the Statute is "UNLESS" a lower number is provided". Your 50% + 1 is lower and is what you will follow for amendment changes.

You also need to watch for a couple of other key words such as "WILL or SHALL or MAY" Shall and will mean that you absolutely must. May means you might or you might not. Read all key verbs as they have different meanings.