Florida HOA CCR amendment process

BrendaS4 (Florida)
Posts: 40

Posted:

Can a CCR amendment be done by “petition” (a list signed by the owners) and that list brought to the board meeting to show the required percentage of approvals and this would be the only signatures for getting the approval.
OR should it be done by a “ballot” vote from each individual owner, with a reasonable time in front of the owner for their review, and the proper venue for counting the ballot a “membership meeting.”

OR can we deliver an explanation to each owner and then following that proceed with a “petition” stating the change, and validating that the original explanation was sent to everyone.

The CCR only states “This declaration may be amended by an instrument signed by not less than 75% (percent) of the members.” It has no other restrictions or instructions and does not define “...an instrument....”

There is a difference of opinion on this basic issue of the proper method/procedure for an amendment. I am not convinced that walking a petition around door-to-door gives the proper “legal” notice to an owner for an amendment. I do not believe members’ votes can be counted and recorded at a board meeting when members do not have the right to vote at board meetings. Something just doesn’t feel right with the use of a petition in any manner. But if a petition is okay, there are members willing to walk-the-walk.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Hi Brenda:

From the statute it appears that it should be done at an annual meeting or special meeting of the members.

Here is the FL statute regarding Amendments if you are in an HOA and not a Condo:

720.306Meetings of members; voting and election procedures; amendments.—

And which states:

(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.

BrendaS4 (Florida)
Posts: 40

Posted:

Thanks, Janet, you got it. After all the reading I did, I missed that one major piece of information. Thank you. That settles it for me.

CarolynL2 (Florida)
Posts: 73

Posted:

Brenda,

If you were incorporated under Florida Statutes Chapter 617 there is a provision for members to take action without a meeting, and without a vote. There are specific requirements for member consent which if met has the effect of a meeting vote and may be described as such in any document.

See F.S. 617.0701(4).

JanetB2 (Colorado)
Posts: 4,219

Posted:

Hi Carolyn:

You might want to check with an attorney prior to trying to amend CCR’s using the 617 statute. In the title of the statute you posted it states “consent to corporate actions without meetings”. Generally the Corporate statutes will govern the Articles of Incorporation and By-Laws; however, the Declaration of CCR’s generally fall under the HOA statutes. For example Statute 720 states the following:

720.302 Purposes, scope, and application.—

(1) The purposes of this chapter are to give statutory recognition to corporations not for profit that operate residential communities in this state, to provide procedures for operating homeowners’ associations, and to protect the rights of association members without unduly impairing the ability of such associations to perform their functions.

BrendaS4 (Florida)
Posts: 40

Posted:

I looked at 617 and it seems clear that 720 will override for this issue. Thanks,

CarolynL2 (Florida)
Posts: 73

Posted:

Janet & Brenda,

What was determined by the court in a case our association was recently involved in, is that both Chapter 617 and Chapter 720 would apply to an association incorporated under F.S. Chapter 617. If you look at the history note on 720.302 you will see that it was formerly 617.302. The statutes were renumbered in 2000 and placed in F.S. Chapter 720. Actions taken under F.S. Chapter 617 are valid and are to be read in conjunction with F.S. Chapter 720.

In my opinion, if an association is incorporated under Chapter 617 and the specific requirements are met for members to take action without a meeting or vote under F.S. 617.0701(4)the courts would uphold this action.

617.302 Homeowners' associations; purposes, scope, and application.--
(1) The purposes of ss. 617.301-617.312 are to give statutory recognition to corporations that operate residential communities in this state, to provide procedures for operating homeowners' associations, and to protect the rights of association members without unduly impairing the ability of such associations to perform their functions.

720.302
5) Unless expressly stated to the contrary, corporations that operate residential homeowners’ associations in this state shall be governed by and subject to chapter 607, if the association was incorporated under that chapter, or to chapter 617, if the association was incorporated under that chapter, and this chapter. This subsection is intended to clarify existing law.
History.—s. 34, ch. 92-49; s. 53, ch. 95-274; s. 45, ch. 2000-258; s. 11, ch. 2003-14; s. 17, ch. 2004-345; s. 14, ch. 2004-353; s. 8, ch. 2007-173.
Note.—Former s. 617.302.

CarolynL2 (Florida)
Posts: 73

Posted:

I should have added that the statute I referenced 617.302 is the statute prior to 2000 that was renumbered as 720.302

ArthurG (Florida)
Posts: 7

Posted:

Brenda Hi. I live in an HOA. I was on our board for 4 years, and had a property manager license. I let it expire. No jobs.

Whether you can amendment your CCRs with a petition to the board depends on what is in your CCRs. Florida state law does not talk about that. Florida law does not say much about HOAs, which is good and bad.

The owners own the association, and usually, a CCR must be amended by the owners, at a members meeting, either the annual meeting, or a special members meeting. Your CCR may allow you to petition the board to get them to send out the amendment, with notice, for a members meeting and vote. If your CCR doesn't specially allow for a petition, you can always petition the board, anyway, and see if the board will send out the notice and amendment. If they won't, Florida law gives you the right to demand a special members meeting if at least 10% of you give the board a petition for it, including what you are going to do- amend the CCRs. Then, the board has to schedule a members meeting, and give 14 days notice that you will meet in a members meeting, and vote on the amendment. You said your CCR requires 75% of the members voting for the amendment. It should also tell you what percentage of the members must be there to have the meeting, and what percentage must be there to vote on an amendment. At the members meeting, then, you vote on the amendment.

I should caution. Any amendment you want to put in a CCR should be reviewed by an attorney, usually the board attorney, to make sure it complies with state law and does not conflict with the bylaws or some other document.

I have more background with this. I work part time for an attorney who specializes in HOA law. I am also a parliamentarian. I teach Robert's and bylaws, and have studied CCRs for a while. Unfortunately anything to do with CCRs can get complicated. If you would like I can take a look at your CCRs and see what else they say that has some bearing on what you do for an amendment.

Arthur

ArthurG (Florida)
Posts: 7

Posted:

Brenda Hi. I live in an HOA. I was on our board for 4 years, and had a property manager license. I let it expire. No jobs.

Whether you can amendment your CCRs with a petition to the board depends on what is in your CCRs. Florida state law does not talk about that. Florida law does not say much about HOAs, which is good and bad.

The owners own the association, and usually, a CCR must be amended by the owners, at a members meeting, either the annual meeting, or a special members meeting. Your CCR may allow you to petition the board to get them to send out the amendment, with notice, for a members meeting and vote. If your CCR doesn't specially allow for a petition, you can always petition the board, anyway, and see if the board will send out the notice and amendment. If they won't, Florida law gives you the right to demand a special members meeting if at least 10% of you give the board a petition for it, including what you are going to do- amend the CCRs. Then, the board has to schedule a members meeting, and give 14 days notice that you will meet in a members meeting, and vote on the amendment. You said your CCR requires 75% of the members voting for the amendment. It should also tell you what percentage of the members must be there to have the meeting, and what percentage must be there to vote on an amendment. At the members meeting, then, you vote on the amendment.

I should caution. Any amendment you want to put in a CCR should be reviewed by an attorney, usually the board attorney, to make sure it complies with state law and does not conflict with the bylaws or some other document.

I have more background with this. I work part time for an attorney who specializes in HOA law. I am also a parliamentarian. I teach Robert's and bylaws, and have studied CCRs for a while. Unfortunately anything to do with CCRs can get complicated. If you would like I can take a look at your CCRs and see what else they say that has some bearing on what you do for an amendment.

Arthur

ArthurG (Florida)
Posts: 7

Posted:

Brenda Hi. I live in an HOA. I was on our board for 4 years, and had a property manager license. I let it expire. No jobs.

Whether you can amendment your CCRs with a petition to the board depends on what is in your CCRs. Florida state law does not talk about that. Florida law does not say much about HOAs, which is good and bad.

The owners own the association, and usually, a CCR must be amended by the owners, at a members meeting, either the annual meeting, or a special members meeting. Your CCR may allow you to petition the board to get them to send out the amendment, with notice, for a members meeting and vote. If your CCR doesn't specially allow for a petition, you can always petition the board, anyway, and see if the board will send out the notice and amendment. If they won't, Florida law gives you the right to demand a special members meeting if at least 10% of you give the board a petition for it, including what you are going to do- amend the CCRs. Then, the board has to schedule a members meeting, and give 14 days notice that you will meet in a members meeting, and vote on the amendment. You said your CCR requires 75% of the members voting for the amendment. It should also tell you what percentage of the members must be there to have the meeting, and what percentage must be there to vote on an amendment. At the members meeting, then, you vote on the amendment.

I should caution. Any amendment you want to put in a CCR should be reviewed by an attorney, usually the board attorney, to make sure it complies with state law and does not conflict with the bylaws or some other document.

I have more background with this. I work part time for an attorney who specializes in HOA law. I am also a parliamentarian. I teach Robert's and bylaws, and have studied CCRs for a while. Unfortunately anything to do with CCRs can get complicated. If you would like I can take a look at your CCRs and see what else they say that has some bearing on what you do for an amendment.

Arthur

ArthurG (Florida)
Posts: 7

Posted:

Ooops. Sorry for all the replies. I hit the Submit button once too often.

BrendaS4 (Florida)
Posts: 40

Posted:

Arthur, Thanks, I agree with you. We have reviewed everything. We have read carefully our CCRs and 720. We are very confident that we have identified the proper process – a meeting of the members and all of the proper steps that go along with that. We want that process along with the wording for the amendment to be reviewed by the association lawyer.

We just have to convince our president that walking around a petition is not the proper method. At this time we are attempting to do this on a cooperative method. If we continue to receive objections, we will petition the board to place on their agenda; if we still have opposition, we will follow the process to petition for a members meeting. We are hoping to get the cooperation of the president and board and not have to implement all these extra steps and keep everything on a pleasant basis.

Actually we are trying to implement a preliminary step before going through the whole difficult, lenghthy process for an amendment. We have asked out president to submit the paragraph to the lawyer to get an "opinion" as to what exactly is restricted and what is not based on the wording of the deed restriction and of course what might be held up in the courts. At this time, we are waiting for an answer from the president if she will honor our request and forward our question to the lawyer. If she refuses (as an individual) we will petition the board to do this.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Brenda,

If you look more carefully into S.S 720, you will see that any proposed change to your CC&Rs, must be done with proper notice of 14 days prior to any meeting or vote on the changes. CC&R changes MUST be voted apon by the membership. Your documents will state by how many votes they must pass by. like 2/3rds or 51% or what ever number is required. You may not changes CC&Rs without this going to the entire membership.

Definitely have your lawyer okay any proposed change to insure that it is legal, and enforcable. Once the language is approved, then send the proposal out to the members, giving adequat time for them to review it. Send along a ballot with the proposed change with a "YES_PASS or a NO__DENY" "Call and post (POST IS IMPORTANT) the meeting at which the amendment will be adopted by the Board (IF IT PASSES THE REQUIRED VOTES) You must give the 14 day notice for the meeting.

TYPE OF MEETING Condo/Co-op HOA
Board meeting 48 hours posted (or pursuant to documents) with agenda 48 hours posted (or pursuant to documents)

Budget meeting 14 days mailed (along with a copy of the proposed budget) and posted, unless documents require a longer time period Pursuant to documents

Annual meeting 60 days for first notice; 14 days for second notice, mailed, delivered or electronically transmitted 14 days mailed, delivered or electronically transmitted (unless documents require more notice)
Board meeting to levy a special assessment 14 days mailed and posted-- condos must also include the purpose & estimated amount of special assessment in the meeting notice (14 days applies to meetings to establish the insurance deductible as well) 14 days mailed and posted

Board meeting to adopt rules regarding unit or parcel use 14 days mailed (along with a copy of the proposed rule) and posted 14 days mailed (along with a copy of the proposed rule) and posted
Member meeting Pursuant to By-Laws (usually at least 14 days mailed, delivered or electronically transmitted) 14 days mailed, delivered or electronically transmitted (unless documents require more notice)

Committee meeting Committees that take final action on behalf of the board or make recommendations to the board regarding the association budget must notice their meetings 48 hours in advance, and the meetings must be open to the unit owners Must be posted 48 hours in advance when a final decision will be made regarding the expenditure of association funds and to meetings of any committee vested with the power to approve or disapprove architectural decisions with respect to a specific parcel of residential property owned by a member of the community