changing HOA declarations

I live in a small HOA lakeside community in North Texas. About three months ago me and two others got a signed petition requesting the HOA to change the declaration that prevents homeowners from allowing them to leave a boat in their driveway. Since we had 85% of the homeowners checking yes to the change we submitted this the HOA Board. Two months later the board sent out a list to all homeowners asking them to vote yes or no to the following changes. The changes included vinyl fencing, solar panels, boats parked in driveways and numerous other changes. You had to vote yes or no to all, you could not vote on individual items. Since only 40% of the homeowners turned in the vote all changes were denied. Me and two others filed the petition with the county court house. Now we are wondering if we have a legal chance in changing the boat declarations.

We asked the board to send a a single vote. They replied with, We dont have enough time to prepare a single vote. I replied with, your leaving us with only one option and thats the leagl process. The HOA replied with.

We look forward to it. Just keep the following in mind:

1. A petition is not a sufficient method to change the Declarations. Only a Two-Thirds Members Vote can change the Declarations.

2. The Texas Property Code allows the Board to decide whether to group all changes into one vote or to break them up into individual items.

Thank you.
SPSHOA Board of Directors

Charles,

Any kind of a lawyer would argue against a bundle on the changes that you listed.

Solar panels now follow Federal Laws, should have been seperate issue to comply with the laws.

Boats--addressed in your CC&Rs, a seperate issue.

Fences, probably addressed in CC&Rs but it is an architectural issue and probably should be seperate.

Just because the Texas Property Code allows the Board to decide how to propose these, what do your Amendment Changes say in your own documents?

Jeannie,

That is true. Many States allow for a rewrite vote to be a single vote for the entire rewrite. In this case tho, as someone who likes to sort out issues, I think that there were controversial items under the sigle vote. Not the way to go as the o.p. had petitioned for a specific item to be voted on.

I have read all of the bylaws and declarations in regards to changing declarations and covenants. It says that we need 2/3 member vote to make a change. Again, we have a signed petition from 80% of all the homeowners saying that they want to change the boat bylaws. The HOA board included this proposed change along with 10 other changes. Each homeowner had to vote yes or no to all, you could not vote on each item. After the vote failed we went to the county to amend the covenants. Now we have a demand letter from an attorney that’s representing the HOA board telling us we violated the 2/3 vote and unlawfully changed the declaration. We have 10 days to respond. One of the proposed changes that we voted on was solar panels. I know that a HOA cannot restrict a homeowner from using solar panels. The ironic part is one of the HOA board members installed solar panels after the vote failed to pass. How should we move forward? We contacted a attorney and waiting for his reply. Part of me thinks a judge might ask the HOA board to hold a standalone vote. Another part of me thinks a judge will say we violated the 2/3 vote bylaw. Both scenarios will cost a lot of money.

To Clarify - the document I speak of is the coversheet submitted to the court that swore the vote was taken and changed.

Thanks for the replies. I acted on this when an attorney told me I could file the change with the court house using a signed petition. When I showed him the demand letter He told me that he needs advice too. That’s when I became concerned. I realized that I was getting advice from a fee attorney that deals with home sales. Live and learn! There are 3 other homeowners involved with the filing and we are going to meet tonight.

This statement will be the question for the court.

If you care to share,

What was the exact language on the petition?
Was the language the same on each page of the petition?
What is the exact language for amending the Declaration (I'm looking for a reference to a meeting or votes cast at a meeting)?

Petunka had an excellent suggestion if you find it was improper.

Depending on the advice of your lawyer, you might want to compromise with the board saying you would correct the filing if they would hold a vote for the single amendment.

Tim

What was the exact language on the petition?

our current HOA bylaws allow us to park our boats from noon friday until noon monday. We want to expand the by law and allow boats in the drivewat from memorial day to labor day weekend. The boats must be in operational order, state registration and must not be in a state of repair. Please sign below if you agree to the chage.

Was the language the same on each page of the petition?

8.23 Boats and Personal Watercraft. Boats and personal watercrafts (PWCs) on
trailers may be stored on driveways in Public View from one (1) week before
Memorial Day Weekend to one (1) week after Labor Day Weekend. Those boats and PWCs
on trailers must (a) be in complete operational order, in one complete piece, and
not in a state of disrepair while parked in the driveway, (b) not protrude into the
sidewalk, (c) not be parked even partially on the grass, (d) be covered with a
cover whose primary application is designed for watercraft, (e) not exceed a height
of fifteen (15) feet from ground level, (f) not threaten
public safety and (g) not violate any law. Anyone having a boat on a trailer in
their driveway in Public View before or after the dates specified will be in
violation of this covenant. Boats and PWCs not stored in Public View must still
comply with items (a) thru (g) of this covenant.

Thanks for sharing that Charles.

I am not an attorney. I do not work within the legal profession. I am offering advice based on the information contained within your postings, research, personal experiences and, hopefully, some common sense.

If this is the correct link to your Declaration of Covenants and Restrictions

Based on the above link (and the expectation that it is your Associations governing document I am linking to), I would strongly recommend that you nullify your filing of the amendment for the following reasons:

1) Requirement to amend document not met.

Section 11.3 clearly specifies that the document can only be changed by 2/3 of member vote (unless you are still under declarant control).

Article 1 of the document clearly states that the term "two/thirds member vote" is defined as votes cast at a meeting unless a written consent in lieu of meeting is signed.

Additionally, an argument could also be made that unless you can certify that you took the petition to each and every member so they could weigh in on the matter - notification requirements were not met (as some members (especially non-resident members)did not have an opportunity to weigh in on the petition).

2) Language in Petition caused a conflict within the document.

Article VIII section 8.6 clearly specifies that no boats or trailers are to be parked on a lot unless screened from view.

By just adding section 8.23 (as proposed in your petition) there is a conflict within the document which can cause a member to file legal action for a ruling.

A better worded amendment might have been:

Article VIII is hereby amended by removing the words "boat, boat trailer" from section 8.3, sentence one and adding section 8.23: .......

Of course, wording an amendment like I offered would also cause conflict as it could be interpreted that boats and boat trailers could only be stored off site between labor day and Memorial day (Sept-May).

As you can see, it isn't easy to try and make changes when you are amending documents. This is why the process typically takes a long time.

3) The Board did hold a meeting about the amendment and the proposal failed to pass.

Perhaps you attorney failed to review the governing documents prior to offering the advice. Perhaps there is something I am missing (as I didn't go into the documents or legal statutes in depth).

Hope this helps,

Tim

Note: If the documents I was referring to are not your Associations, most of this advice is mute.

Again, I am not an attorney. I do not work within the legal profession.

Charles,

Again, expecting that I'm looking at the correct documents, one could also argue that the Board doesn't have the authority to allow boats to be parked in the driveway over the weekend as this is in conflict with section 8.6 of the CC&Rs. Typically, when there is a conflict between the Declaration (CC&Rs) and any other Association document, the Declaration has the controlling authority.

Sorry to have to point that out.

Tim

We had a meeting last night to determine that we have to resend the petition that we filed. The two areas that we made mistakes on. 1. We did not have the right to file a petition, only board member can do this. 2. The boat bylaw is in the fee schedule section. The board should of made it part of the declaration. In other words we were asking to change a bylaw that doesn’t exist. Now the next step is to learn how to resend our petition.