Declaration Ammendment and Community Majority

Started by RogerB6 • 5 replies • 1596 views

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RogerB6 (Pennsylvania)
Posts: 1

Posted:

All,
Hopefully this will be a relatively easy answer..

We are a new community/new board. Our Declaration states that sheds are not allowed, but this point of the declaration can be altered by a 67% majority of all homeowners. A proxy vote went out with an explanation that not voting meant that your vote would not be counted in the total. I learned that there was a very low turnout, and the the ammendment will pass, but I am unsure if it is legal as the Declaration clearly states that 67% of the owners needed to have said YES (and this is clearly not the case).

I scoured the bylaws for information regarding quorum, etc, and could not find a hint of information on this. BTW, this is the only point in the declaration that can be voted on to be overturned, so I am left wondering if there might not be anything in the bylaws to address it.

Thanks in advance for your help.

RogerB (Colorado)
Posts: 5,067

Posted:

RogerB6, You need 67% of ALL owners and can not use proxies. Try mailing the ballot to owners and if necessary follow up door to door. No response is equivalent to a no vote.

TimB4 (Tennessee)
Posts: 21,062

Posted:

Roger & Roger,

Actually, no response is equivalent to a non-vote. It's not counted either way.

Granted, this usually indicates that the measure fails to pass but that is not the same as if it was defeated.

Example:

100 possible votes.
51% needed to pass
50 people vote
Vote is 48 yea, 2 nay
measure fails to pass due to not reaching the required numbers required.
Based on the vote count, the proposal was obviously supported - indicating that if brought to a vote again and more energy is spent in getting proxies, then it could pass.

RogerB,

Send a certified letter to the Board requesting to see the election documents including the sign in sheet, the ballots and any proxy statements. Once you review the documents, you will have your answer. If the answer is opposite of what the Board is saying, and the Board doesn't listen, you will probably need to challenge the issue in court.

Tim

TimB4 (Tennessee)
Posts: 21,062

Posted:

Oops, That last part was for RogerB6

BonnieG1 (Nebraska)
Posts: 1,186

Posted:

To RoberB. You said you cannot use proxies for an amendment. Is that in a certain state? We just had a vote (called by petition of the members) last evening on amending our documents. We used proxies. The proposed amendment failed. But no proxies???

JanetB2 (Colorado)
Posts: 4,219

Posted:

Hi Roger B6:

Here are PA state statutes, and it also states 67% (or larger if specified in the declaration):

http://www.pacondolaw.com/statutes_upca2.html

5219. Amendment of declaration

(a) Number of votes required.--
(1) The declaration, including the plats and plans, may be amended only by vote or agreement of unit owners of units to which at least:
(i) 67% of votes in the association are allocated; or
(ii) a larger percentage of the votes in the association as specified in the declaration; or
(iii) a smaller percentage of the votes in the association as specified in the declaration if all units are restricted exclusively to nonresidential use.

5309. Quorums

(a) Association.--Unless the bylaws provide otherwise, a quorum is present throughout any meeting of the association if persons entitled to cast 20% of the votes which may be cast for election of the executive board are present in person or by proxy at the beginning of the meeting. The bylaws may require a larger percentage or a smaller percentage not less than 10%.

5310. Voting; proxies

(b) Proxies.--Votes allocated to a unit may be cast pursuant to a proxy duly executed by a unit owner. If a unit is owned by more than one person, each owner of the unit may vote or register protest to the casting of votes by the other owners of the unit through a duly executed proxy. A unit owner may not revoke a proxy given under this section except by actual notice of revocation to the person presiding over a meeting of the association. A proxy is void if it is not dated or purports to be revocable without notice. A proxy terminates one year after its date unless it specifies a shorter term.

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