How to change, add or modify indentures

Started by TimT2 • 5 replies • 1553 views

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TimT2 (Missouri)
Posts: 5

Posted:

Just came back from our annual HOA meeting. We're trying to add an indenture to our bylaws. The President of our board wants to mail out ballots to everyone requesting that they return ballot with either a yes or no vote. Any ballot NOT returned would be considered a no vote.
Would this be legal? Our bylaws state that any changes to our bylaws would require 2/3 of our residents approving such a change.
Thanks

TimB4 (Tennessee)
Posts: 21,059

Posted:

Tim,

Typically a non-vote is just that a non-vote. It can have the same affect of a nay vote depending on what your language is for adopting changes.

If it says x% of the membership is required to adopt than a non-vote has the same impact as a nay vote.

If it says x% of the votes cast than a non-vote is just that a non-vote.

Based on your post that adopting requires 2/3 of the membership, then a non-vote would be similar to a nay vote.

TimT2 (Missouri)
Posts: 5

Posted:

Our bylaws state that a 2/3 vote of the owners of record are required to amend, modify, remove or release.
Does this mean that any ballots NOT returned would be considered a yes or no vote?

TimB4 (Tennessee)
Posts: 21,059

Posted:

Tim,

Ballots not returned would not be counted but have the same affect as if the ballot was returned with a nay vote.

Example:

100 lots, 1 vote per lot.

2/3 of 100 = 66.6666 or 67 votes needed for approval.

If only 65 ballots were returned and even if all of them indicated a yea vote, you still fell 2 votes short of approving the change (as 67 yea votes were requited). This is why I said a non-vote has the same affect as a nay vote.

Even though it has the same affect as a nay vote, it wouldn't be counted as a nay vote. Using the example above, that vote would be counted and reported as:

65 yea votes, 0 nay votes, 33 abstained.
67 yea votes required for adoption - measure fails to be adopted.

I suspect that your Board was just trying to explain how a non-vote could affect the results vs. actually counting them as a nay vote.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Darn lack of editing feature.

The results would actually be
65 yea votes, 0 nay votes, 35 abstain

JohnB26 (South Carolina)
Posts: 1,569

Posted:

you MUST have 2/3 ACTUAL yay votes .... if you have 167 homes then you would need:

167 X 2/3 = 111.33333 rounded up to 112 YAY votes

the # of 'abstentions' and/or NAY votes is a moot academic point except for 'reporting' and record keeping

CAVEAT EMPTOR

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