Amendment of Covenants & Restrictions

Started by JohnG4 • 5 replies • 1416 views

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JohnG4 (Florida)
Posts: 3

Posted:

Fla. HOA - 720

A new board was elected and a decision was made to change and bring up to date the C&Rs, By-Laws and the Rules & Regs.

Vote was held at annual meeting and the By-Laws and Rules and Regs passed by a majority of voting members.
C&Rs did not pass as the requirements to amend them require a majority of the Lot owners.

Now the Board is going out with a peition to get signatures from a majority of Lot owners to change the requirements to change the C&Rs to a simple majority of voting members at the Annual meeting. This would seem to be in order to meet State statutes ---

HOWEVER --- The Board is taking the position that if they get the required number of signatures
Then they can reinstate the changes that did not pass at the Annual meeting.

I cry Foul -- another vote must be taken --

Appreciate any advise

SusanW1 (Michigan)
Posts: 5,202

Posted:

Check your CCRs - they may say "if X% are in AGREEMENT . . " or they may say "requires a vote of X% . . "

What is the wording on the petition?

How do you know it is just not requesting a Special Meeting to conduct the vote?

MelissaP1 (Alabama)
Posts: 13,836

Posted:

You can actually skip the special meeting requirement to gather votes. However, it means the member has to give up their rights to attend the special meeting to cast their vote. Confused? It really isn't. It just allows the HOA to go door to door or gather votes outside that special meeting requirement. That means signing an extra form along with the actual petition/vote. Our lawyer drafted this up for us to gather the nearly impossible 90% majority requirement. Considering only 1 or 2 people attended a meeting...

I would say your BOD may be doing something similar to this and trying to kill two birds with one stone. By combining the abiltity to have an owner sign the changes at the same time requesting another possible change. It's hard to predict the future and most times a high rate of over 75% of membership votes to make changes will be impossible to get one day. It's best to pre-plan now and reduce that requirement to a manageable and realistic number.

Former HOA President

JanetB2 (Colorado)
Posts: 4,219

Posted:

Hi John:

I assume you are discussing a FL property due to you posted: Fla. HOA – 720

A new vote should be taken. The original vote was completed under the guidelines in place at that time. However, you need to make sure also what your governing documents state regarding amendments. I would seriously doubt it allows for retroactive voting.

LOL … that would be like a vote to Amend the US Constitution and not enough votes to change, but then lowering the number required and declaring all past votes valid for all past attempts to amend.

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

(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.

JohnG4 (Florida)
Posts: 3

Posted:

Quote:

Posted By JohnG4 on 03/09/2012 10:23 AM
Fla. HOA - 720

A new board was elected and a decision was made to change and bring up to date the C&Rs, By-Laws and the Rules & Regs.

Vote was held at annual meeting and the By-Laws and Rules and Regs passed by a majority of voting members.
C&Rs did not pass as the requirements to amend them require a majority of the Lot owners.

Now the Board is going out with a peition to get signatures from a majority of Lot owners to change the requirements to change the C&Rs to a simple majority of voting members at the Annual meeting. This would seem to be in order to meet State statutes ---

HOWEVER --- The Board is taking the position that if they get the required number of signatures
Then they can reinstate the changes that did not pass at the Annual meeting.

I cry Foul -- another vote must be taken --

Appreciate any advise

PaulM18 (Virginia)
Posts: 46

Posted:

Our HOA has been talking about updating our governing documents...

Based on some of things I've heard here I think what might work better is:

Revise documents - post them for comment - update revision - post for comments (etc until we get some type agreement)

Get our lawyer to review

Have a meeting (special/annual)

Quorum Vote to move forward on getting concurance signatures from the membership for the changes.

Then go around and either get signatures or send proxy signature letters.

All our current Declaration states for amendments "An instrument signed by a majory of the than owners of the lots"

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