Procedure for homeowner to change policy

GaryB11 (California)
Posts: 66

Posted:

California HOA. I have posted our HOA parking issue and received fantastic feedback. Basically, our CC&Rs prohibit parking on the street or on the driveway. There are no exceptions. Until today, the board ignored the no parking policy in the driveway; but, they enforced it on the private streets. Approximately 4 weeks ago, the board sent out a parking "guideline" to the homeowners that allowed parking in the driveway, and allowed parking permits for the street.

It was brought to the board's attention that they did not have authority to modify the CC&R policy via a parking guideline or new rule. After a long argument, the board did not pass the guideline; and, a motion to adhere to the CC&Rs failed to receive sufficient votes as well.

As a homeowner, I want to submit a proposal to change the parking policy. In CA, is there a way (without arbitration) that would force the board to present my parking policy to the association for vote? Also, there is no way to get the 60% vote required to change the policy. Most of the properties are owned by banks and families with other primary residency. Therefore, I assume that we will need to go to court to reduce the votes required. How time consuming is this process? Is it just a rubber stamp, once the homeowners fail to vote?

Appreciate your responses.

Gary

LarryB13 (Arizona)
Posts: 4,099

Posted:

Gary,

It sounds like you wish to amend the CC&R's. Your declaration should have a section on how to amend that document. Most commonly, the declaration is amended by writing out the proposed amendment, collecting signatures from the required number of homeowners, and recording it with the county recorder (or whoever records deeds).

In most cases, there is no approval required from the association, no special meetings, no votes, and no limit on how long it takes.

GaryB11 (California)
Posts: 66

Posted:

I did a poor job of explaining my situation. The CC&Rs require 60% of the homeowners to approve a policy change. It is impossible to get 60% of the homeowners to vote, let alone vote in the affirmative. I have been told that at some point, if we don't get an adequate response, we have to go to Superior court. Since, it is a given in this case, I'm wondering if anyone has gone through the court process and the time it will take to complete.

Thanks

GlenL (Ohio)
Posts: 5,491

Posted:

Civil Code §1356. Petitioning Court to Amend CC&Rs.

(a) If in order to amend a declaration, the declaration requires owners having more than 50 percent of the votes in the association, in a single class voting structure, or owners having more than 50 percent of the votes in more than one class in a voting structure with more than one class, to vote in favor of the amendment, the association, or any owner of a separate interest, may petition the superior court of the county in which the common interest development is located for an order reducing the percentage of the affirmative votes necessary for such an amendment. The petition shall describe the effort that has been made to solicit approval of the association members in the manner provided in the declaration, the number of affirmative and negative votes actually received, the number or percentage of affirmative votes required to effect the amendment in accordance with the existing declaration, and other matters the petitioner considers relevant to the court's determination. The petition shall also contain, as exhibits thereto, copies of all of the following:

(1) The governing documents.

(2) A complete text of the amendment.

(3) Copies of any notice and solicitation materials utilized in the solicitation of owner approvals.

(4) A short explanation of the reason for the amendment.

(5) Any other documentation relevant to the court's determination.

(b) Upon filing the petition, the court shall set the matter for hearing and issue an ex parte order setting forth the manner in which notice shall be given.

(c) The court may, but shall not be required to, grant the petition if it finds all of the following:

(1) The petitioner has given not less than 15 days written notice of the court hearing to all members of the association, to any mortgagee of a mortgage or beneficiary of a deed of trust who is entitled to notice under the terms of the declaration, and to the city, county, or city and county in which the common interest development is located that is entitled to notice under the terms of the declaration.

(2) Balloting on the proposed amendment was conducted in accordance with all applicable provisions of the governing documents.

(3) A reasonably diligent effort was made to permit all eligible members to vote on the proposed amendment.

(4) Owners having more than 50 percent of the votes, in a single class voting structure, voted in favor of the amendment. In a voting structure with more than one class, where the declaration requires a majority of more than one class to vote in favor of the amendment, owners having more than 50 percent of the votes of each class required by the declaration to vote in favor of the amendment voted in favor of the amendment.

(5) The amendment is reasonable.

(6) Granting the petition is not improper for any reason stated in subdivision (e).

(d) If the court makes the findings required by subdivision (c), any order issued pursuant to this section may confirm the amendment as being validly approved on the basis of the affirmative votes actually received during the balloting period or the order may dispense with any requirement relating to quorums or to the number or percentage of votes needed for approval of the amendment that would otherwise exist under the governing documents.

(e) Subdivisions (a) to (d), inclusive, notwithstanding, the court shall not be empowered by this section to approve any amendment to the declaration that:

(1) Would change provisions in the declaration requiring the approval of owners having more than 50 percent of the votes in more than one class to vote in favor of an amendment, unless owners having more than 50 percent of the votes in each affected class approved the amendment.

(2) Would eliminate any special rights, preferences, or privileges designated in the declaration as belonging to the declarant, without the consent of the declarant.

(3) Would impair the security interest of a mortgagee of a mortgage or the beneficiary of a deed of trust without the approval of the percentage of the mortgagees and beneficiaries specified in the declaration, if the declaration requires the approval of a specified percentage of the mortgagees and beneficiaries.

(f) An amendment is not effective pursuant to this section until the court order and amendment have been recorded in every county in which a portion of the common interest development is located. The amendment may be acknowledged by, and the court order and amendment may be recorded by, any person designated in the declaration or by the association for that purpose, or if no one is designated for that purpose, by the president of the association. Upon recordation of the amendment and court order, the declaration, as amended in accordance with this section, shall have the same force and effect as if the amendment were adopted in compliance with every requirement imposed by the governing documents.

(g) Within a reasonable time after the amendment is recorded the association shall mail a copy of the amendment to each member of the association, together with a statement that the amendment has been recorded.

Studies show that 5 out of 4 people have problems with fractions

LarryB13 (Arizona)
Posts: 4,099

Posted:

The way I read section 1356(c)(4) is that you need to show that at least 50% of the owners approve the amendment. That just does not sound much easier than getting 60% to approve.