Invalid Covenant Change

Hello All,

I am a member of my HOA Board. The restrictive covenants can only be changed by a homeowner majority vote of 75% or more.

The board just recently voted on a covenant change instead of putting the vote forth to the homeowners. When I brought this to their attention prior to the vote, I was told that it was impossible to get 75% of the homeowners to vote for any item, so the Board would vote instead. Apparently, this is not the first time they have done this (I was not a board member at that time).

I abstained from the vote and asked that my comments be noted in the minutes. I am at a loss as to how to proceed as the vote was not valid. I cannot in good conscience watch this happen and not take action.

Any advice would be greatly appreciated. Thank you!

Vivian,

If the other board members are not willing to listen, I think that you have done all you can do as a member of the Board.

As an Association member, you could gather your neighbors together, seek additional information by going through the minutes and see how many changes were made in the past by just the Board. Then research the laws of your State to verify that the Board did not have any authority to make the changes they made (I say this because some States allow the Board to make changes to correct simple errors (like misspellings)).

Then you, and your neighbors can either:

1) Recall the Board
2) Challenge the amendments through the courts
3) live with how it's being done

Thank you Susan, Tim, and Carol for the excellent points. I will definitely ask for a recision of the vote and will follow-through with the other advice as well. I really am grateful for your thoughtful and knowledgeable responses.

Vivian

There is a difference in a CC&R (often called covenants) and Bylaw change.

Usually a CC&R change will require a quorum of say 75% of the homeowners to vote on to change. Like we needed a quorum of 75% to change our CC&R's to a quoram being 66%, not 75%. Which we did but we needed 75% of the owners to vote on it.

Now a Bylaw change can usually be done by a majority of the BOD voting for. Like raising the dues, borrowing money, fines, clarification of parking, etc.

In some states changes (CC&R's and/or Bylaws) apply to all regardless of when they were made, even after one bought in under "older" rules. In other states changes might apply only to those buying in after the changes were made. This is a very hot topic concerning rentals, assements, etc.

Be sure which/what "document" you are referring/asking questions about, what it says "they" can/cannot do, and what state law says.

While not a black or white answer. I believe my advice gives some direction.

Was the intent of the covenant changed or compromised in any way? There are methods of "changing" a covenant by order of Resolution, without the necessary vote, if the intent of the covenant is not changed. For example: we have a covenant that states: "No trailers, trucks or boats shall be stored or parked on the premises. No motor homes, mobile homes, camper trailer, or boats shall be stored or parked on any lot unless said vehicle fits into a garage which has been approved by the Residential Committee." This is an original covenant and is as poorly written as many original covenants are. If you were to read this literally, no one could park a regular ole' pickup truck in their driveway. One cannot reasonably interpret this as the covenant's intent. What is a reasonable interpretation is to not have the neighborhood turn into an RV park or boat launch or an eye-sore of trailers, snowmobiles, jet skis etc.

But, in practice, what was going on is that a three-day grace period was being permitted to allow for the use of these vehicles, for cleaning, unpacking, transporting, visitors, yard work etc. However, there was never anything in writing establishing this as an actual rule. So, my Board, adopted a Resolution establishing the three-day grace period, recognizing that homeowners do own these types of vehicles, do use them, do have visitors who use them and should have reasonable guidelines for such usage.

Also, our Bylaws state: "The Board is empowered to adopt, amend, and revoke on behalf of the Association detailed administrative rules and regulations necessary or convenient from time to time to ensure compliance with the general guidelines of the Declaration of Covenants, Conditions and Restrictions, and to promote the comfortable use and enjoyment of the subdivsion."

So, in the end, we felt that the original intent of the covenant was not being violated, in that after three days any such vehicle would need to be vacated from the property, and in allowing this three-day grace period it did promote the comfortable use and enjoyment of the subdvision.

We wound up establishing seven Resolutions that "altered" a covenant but did not change the intent. Another example was changing the original name of the committee that did architectural review from "Residential Committee," to "Architectural Review Committee" (ARC). Did it "change" the covenant governing this? Yes. Did it change the intent? No.

None of these needed the 2/3's vote needed to "change" a covenant. All seven Resolutions were made and adopted without issue. So, I'm just saying that there are valid instances where Boards can make changes to covenants without the required vote. It just depends on the nature of the change and how it effects the intent of the covenant.

Vivian,

Here is a link to Community Associations network's Ohio Page which has links to Ohio HOA/COA laws on it (scroll down the page and look in the left column). They are also a sponsor of this site.

Additionally, if the Association is incorporated as a nonprofit, Ohio Nonprofit Corporation Law would also apply.

Hope these resources help.

Tim

We have had a couple of cases where a vote was determined to be invalid. One needed a 100% approval for an amendment to our documents.
The other time was when we got 6 members on the board when our documents only allow for 4.
I helped because we had a lawyer on the Board who set us on the right track.

However, I get frustrated because I can say the same thing the lawyer says, but our President doesn't listen to me until the lawyer says the exact same thing.

Hi John:

LOL … would depend on what the document states specifically. Essentially it depends on the “plain” language stated in the governing documents.

The point I am making is that CCR’s and associated Amendments voted by all which are attached to and running with everyone’s property supersede any potential rules and regulations OR resolutions which a small number (a.k.a. board) implement and which might not be legally binding. I would hate to see an association spend a lot of money to pursue litigation for a board rule vs. CCR and possibly not win. If attached to property it potentially “if reasonable” is absolute … if not attached to property and properly disclosed via filed with country records, then possibly HOA would not win.

Important rule in most states is ... items attached to property and properly disclosed most likely will win.

P.S. John, I would move to South Carolina in the blink of an eye. I'm a Southern girl at heart, and it's the only place you can get real grits, thank you very much! LOL back atcha.
D