Super majority

Started by BrianM17 • 15 replies • 3362 views

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BrianM17 (California)
Posts: 6

Posted:

Our CC&Rs state that to change an amendment it "shall require the affirmative vote of not less than 75% of the owners". Note that it says the owners not those casting ballots or voting. Does this mean if we have a 64 unit HOA we need 48 votes to pass? The board which is not liked and dishonest is telling people that all they need is 75% of those voting but that is not what the CC&Rs say.

TimB4 (Tennessee)
Posts: 21,059

Posted:

As you can tell, the number of votes needed to adopt something varies on what is proposed.

Example: 64 lots/units, 1 vote per unit, 4 units not eligible to cast a vote, 52 units show up at meeting, 50 votes cast.

75% of membership = 48 votes needed (64 * .75)

75% of possible votes = 45 votes needed (64-4 * .75)

75% of votes cast = 38 votes needed (50 * .75 rounded up to next whole number)

75% of members at meeting = 39 votes needed (52 * .75)

So based on what you provided, I would agree with you.
However, to be sure, can you provide the language of that whole section (vs that one line)?

Tim

FrankS10 (Kansas)
Posts: 276

Posted:

Brian,

Your first post and you call you Board "dishonest". Not off to a great start here! LOL.

I agree with Tim, and if the language is subject to interpretation...good luck!

DaveD3 (Michigan)
Posts: 796

Posted:

I don't see the language as subject to interpretation except by one who does not want it to read how it reads.

Posting the entire section would be helpful, but if it says 75% of the owners (not an uncommon thing for amendments) then it clearly means 75% of however many owners there are in all. If they're reading it otherwise, I would ask for a document from the HOA's legal counsel stating that it is merely 75% of those casting votes, which could be a very small minority of the association, depending on quorum requirements.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By DaveD3 on 08/07/2013 6:18 PM

Posting the entire section would be helpful, but if it says 75% of the owners (not an uncommon thing for amendments) then it clearly means 75% of however many owners there are in all.

Dave,

I agree with you. However, with only a quote of the text we don't know for sure what the passage actually says. It very well (and since it is the CC&Rs very likely) that it does require 75% of the membership.

However, it could also be that:

Perhaps it says "shall require the affirmative vote of not less than 75% of the owners" at a meeting called for this purpose. Which could be interpreted as 75% of those in attendance.

or

"shall require the affirmative vote of not less than 75% of the owners" eligible to vote.

or

"shall require the affirmative vote of not less than 75% of the owners" of each class.

So yes, based on what has been provided, I agree that there is little interpretation required and it requires 48 votes to adopt a change. However, without knowing exactly what the full language is, I'm not willing to say that this as an absolute.

BrianM17 (California)
Posts: 6

Posted:

The full text is: "This declaration of Covenants and Restrictions may be amended only by an affirmative vote of the owners of not less than 75% of the condominium Units including at least a majority vote of owners other than declarant, provided, however, that no part of Article XVIII ( pertaining to party walls, not involved in this election ) may be amended without the concurrence in writing of 67% of the holders of first mortgage liens upon Units within the Project; and provided further that, so long as there are two classes of members, that affirmative vote shall be 75% of each class."

BrianM17 (California)
Posts: 6

Posted:

By the way there is only one class of members. The other class was done away with when the declarant ( developer ) relinquished control to the homeowners.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Based on this specific language, I believe it is very plain.

Amendments to those CC&Rs require 75% of the units members approval. In your case, it would be 64.

If your Board thinks otherwise, ask them to spend some money and verify this with the Associations attorney.

KevinK7 (Florida)
Posts: 1,343

Posted:

Quote:

Posted By TimB4 on 08/07/2013 9:11 PM
Based on this specific language, I believe it is very plain.

Amendments to those CC&Rs require 75% of the units members approval. In your case, it would be 64.

If your Board thinks otherwise, ask them to spend some money and verify this with the Associations attorney.

If your board is dishonest like you say I would prepare to start informing the neighborhood.

My neighborhood once required a supermajority but the BoD continually lowered the threshold when they couldn't pass anything they wanted (even when homeowners responded no). Their lawyer was behind it and I believe it was because the changes would have provided the lawyer with a nice revenue stream.

Start getting people involved before it is too late and the BoD gets to them first with their misinterpretation.

What kind of chamnge are they seeking anyway?

JohnC46 (South Carolina)
Posts: 14,265

Posted:

What part of:

may be amended only by an affirmative vote of the owners of not less than 75% of the condominium Units

do they not understand.

This says at least 75% of all owners must vote YES in order for the amendment to pass. In your case, 48 out of the 64 owners must say yes.

I would also say it might well mean all owners, even those not in good standing.

If the BOD refuses to listen, take your case to all owners. Only 64 of them so even a direct mailing could be done for less then $50.00.

BrianM17 (California)
Posts: 6

Posted:

Thank you all for the great advice and the time you took to answer my question. You guys are the best and your advice basically confirmed what I thought was the truth.

BrianM17 (California)
Posts: 6

Posted:

Another related question: Can the HOA board use operating budget monies to pay for the CC&R amendment election and legal fees associated with the legal rewrite since the CC&Rs state that anything that is not in the budget must result in a special assessment?

RichardP13 (California)
Posts: 1,767

Posted:

Brian

Operating funds can be used for that purpose.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Brian,

As Richard pointed out, the answer is Yes.

This is because those items would be considered an administrative expense to the Association.

BrianM17 (California)
Posts: 6

Posted:

If the president of an HOA puts out a letter to homeowners in the midst of a contentious amendment change election and he:
1) Uses operating funds to send it out.
2) Signs just his name which identifies him as the HOA president with an HOA letterhead.
3) Endorses one side of the issue and encourages homeowners to vote this way.
4) Refuses to allow the members of the board albeit a minority who oppose his viewpoint to send out their opposing viewpoints using HOA funds.
- Isn't he violating Calif. civil Code 1363.04 (a)?
- When he sent the letter wasn't he taking an action outside of a board meeting decision, or at least not receiving board approval via e-mail of all 5 members?
I am on this board and this letter was never approved and I don't agree with the one sided content of this letter. The majority of this board has an attitude in which they seem to say " We are the majority so don't challenge us".

DaveD3 (Michigan)
Posts: 796

Posted:

Quote:

Posted By BrianM17 on 08/09/2013 2:38 PM
If the president of an HOA puts out a letter to homeowners in the midst of a contentious amendment change election and he:
1) Uses operating funds to send it out.
2) Signs just his name which identifies him as the HOA president with an HOA letterhead.
3) Endorses one side of the issue and encourages homeowners to vote this way.
4) Refuses to allow the members of the board albeit a minority who oppose his viewpoint to send out their opposing viewpoints using HOA funds.
- Isn't he violating Calif. civil Code 1363.04 (a)?
- When he sent the letter wasn't he taking an action outside of a board meeting decision, or at least not receiving board approval via e-mail of all 5 members?
I am on this board and this letter was never approved and I don't agree with the one sided content of this letter. The majority of this board has an attitude in which they seem to say " We are the majority so don't challenge us".

That wasn't your original question about the topic.

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