Non Response Vote- Can it be counted as Yes

We are having a dispute amoungest the board on if we can count a non response vote as Yes, our HOA is in Oregon and it clearly states this in our by laws. Please advise

Also let us know if this issue is for a vote by the general membership or a vote by the Board.

Jonathan,

Is that language in the CC&Rs or another document?

If it is in another document, what is the language in the CC&Rs about amending the document?

Within the CC&Rs, there should be a section concerning amendments to the CC&Rs.

Is the language you cited earlier about amending the CC&Rs from the CC&Rs or from another governing document (bylaws, etc.)? If it was from another document, what is the language in the CC&Rs about amending the CC&Rs or is the CC&Rs silent (not mention anything) about amending the document?

Larry,

I agree that the language sounds like it's from a document other than the CC&Rs. However, I don't know that for sure (hence my questions).

We also don't know, if it's not from the CC&Rs, if the CC&Rs are silent on amendments or if the language is conflicting with the CC&Rs. Additionally, in doing a little research on Oregon law, depending on the type of development, classification of the development (type I, II or III) or if the Association is a condominium or not, that passage may or may not be in conflict with existing State Statutes (hence my questions about the development).

Here is a link to the Oregon laws from Oregonlaws.org

Here is a link to the Oregon laws from oregonlegislature.gov

Apparently, they only revise the statutes or codify the laws every few years (as the last one available is from 2011). However, the legislature website also provides laws adopted in 2012 & 2013.

For further verification, was Article III, item e of your CC&Rs updated on May 5, 1994?

Are they currently in effect? They aren't old unless they have been amended and recorded.

If they are, then you will need 75% of the members to agree to change them.

This is from Article X:

All of the conditions, restrictions and charges set forth in this Declaration are imposed
upon said property for the direct benefit thereof and of the owners thereof as a part of the
general plan of development, improvement, building, occupation and maintenance hereby adopted therefore by Declaration; and such conditions, restrictions and charges shall run
with the land and shall continue and be in full force and effect until extinguished, or
modified as herein provided. Except as provided in ARTICLE IX (b) the conditions,
restrictions and charges set forth in this declaration may be changed by a written
agreement executed by the then record owners of seventy-five per cent or more in area of
said property then subject to the Declaration exclusive of streets, parks and open spaces, said agreement to be placed of record in the Office of the County Recorder for
Washington County, Oregon. The conditions, restrictions and charges, and any of them,
may be changed, modified or extinguished at any time by an instrument executed by the
Association acting by its President and Secretary under authority of a Resolution to that
effect adopted by a majority of seventy-five per cent or more of the votes cast in favor of
such resolution at a meeting of the members of the Association called for that purpose
upon such notice to said members as may be prescribed by the By-Laws of the
Association.

Additionally, Oregon statutes use that same 75% requirement.

Therefore, from this additional information, I conclude the following:

1) The section you cited only requiring a majority of eligible votes is in conflict with the CC&Rs and likely in conflict with existing Oregon statutes. When there is a conflict, the higher precedent document (in this case the CC&Rs or the State Statutes) must be complied with.

2) Stating that a non response is considered a yea vote is, in my layman's opinion, asking for legal action to be brought against the Association. The CC&Rs are plainly written that a written agreement of 75% of members is needed. A non-response is, by definition, a non-response. Therefore, it can't be considered a signature to the agreement.

I STRONGLY encourage your Association to consult with legal counsel concerning that citation you provided. The question to be asked of the attorney is, "Is this citation in conflict with the existing CC&Rs or applicable State Statutes?"

Johnathon

Your BOD is trying to circumvent the way it is. I assume the reason they are trying is apathy as in they cannot get anyone to participate. I assume they think they are being altruistic when in reality, they are actually trying to steal the rights of people out from under them.

Their kind of help we do not need.

Jonathan if you want legal advice, consult an attorney not an internet forum. The consensus so far which I agree with is that this idea will not fly and opens the HOA to endless expensive litigation. Amending document is hard, it is supposed to be to keep out frivolous changes. Since not all amendments need be authored by the Board, be careful when you try to doctor the votes, it can come back to bite you on the ass.

Homeowner A gathers the requisite signatures to call a Special Meeting to amend the Covenants to require all HOA business to be conducted in Klingon. Members present at the meeting vote the proposed amendment down. But by using the section you cited, the majority of homeowners who didn't vote, approved it. The Board now needs to learn to speak Klingon.

In our documents, the homeowners must come to a quorum first. It will never matter how many yea and nay votes are cast if there is no quorum. If a homeowner doesn't vote then it doesn't count toward anything. If a quorum isn't established, whatever was being voted on isn't passed one way or another. Our Association can continue it for 90 more days while attempting to collect more ballots but after that, the issue dies and the process has to start again.

Jonathan,

A low response rate is typical for many Associations. I am not an attorney, but I believe that Tim and Glen and others are giving you good advice.

You cannot force someone to vote.

To abstain means to, not vote at all. Or to put it the other way – to not vote, means to abstain and so, not vote either yes or no.

You may need to go door to door, as is often done when written agreement of 75% of the members is needed, such as to amend recorded Declarations and CC&Rs.

From what you wrote apparently the Board Members are discussing how “non-votes” (those members who abstain) might affect the outcome of a member vote. A member vote on what? Is your question related to a Proxy vote? Are you perhaps discussing the possible effect on a vote when Proxies are not returned?

How do you solicit votes? Would you be willing to clarify, and/or explain further?

If you read Robert's Rule of Order, a non-vote works the same as someone abstaining, which according to Robert's is essentially a "no", or works against you.

If you have 100 eligible members to vote and you need 51% or 51 affirmative "yes" votes to amend or change the Bylaws, just because they don't vote, it doesn't change the calculations. It might as well be a no vote, because what you need is 51 yes votes. If 50 people don't vote and the other 50 people vote yes, then the amendment doesn't pass.

If at a Board meeting, you have 5 Directors, but only four show for a meeting. You have a vote and 2 vote yes, one votes no and the other abstains, the motion fails as your need a majority of the Board present, which would be 3. On the other hand, if you had a motion come up that one of the four might have a conflict of interest, then you could temporary adjourn, come back as a board of three, then all that would be needed is a majority of three, or two yes votes.

Bruce

All 100 Unit Members are in good standing and attend a meeting to vote. 50 raise their hand and vote "yea", 40 raise their hand and vote "nay, while the other 10 are looking out the window. Does the motion pass?

John

I like you reasoning. I have 317 units in good standing. 159 units sent a ballot in. 69 were only for quorum purposes. The other 90 voted, 82 yes and 8 no. Do the CCRs get amended?

That was the point I was trying to make. Just because a person chooses not to vote, they are still part of the equation.

Richard

I agree with Tim's answer. It is often a question of what do your docs say.

There is one school of thought that says well if we have properly notified everyone of our 300 owners and only 30 show up. Are those not the 30 who care and they (10% of the owners) should be able to decide? Is that not the same as saying fuc$ the other 270 as we 30 think "they do not care" or "we 30 know better"?

In a recent city election on a amendment to the city form of government, only 18% of registered voters showed up to vote. 55% of the 18% said NO. The amendment failed. This says 9.9% of registered voters (55% of the 18%) killed the amendment. This was/is the correct procedure as it is how our municipal election laws read.

Somewhat like the Chicken and Egg argument. We need 75% to say yes to change our docs to only needing 10% but we cannot get 75% to vote.....LOL

Splitting hairs over 20.99 or 20.01 means 22 is not the real issue. The real issue is owner control even if they do not vote.

Oregon Chapter 94 — Real Property Development
94.647 Use of written ballot for approving or rejecting matters subject to meeting of association members; procedures; exceptions. (1) Unless prohibited or limited by the declaration or bylaws, any action that may be taken at any annual, regular or special meeting of the homeowners association may be taken without a meeting if the association delivers a written ballot to every association member that is entitled to vote on the matter. Action by written ballot may not substitute for the following meetings:
(a) A turnover meeting required under ORS 94.616.
(b) An annual meeting of an association if more than a majority of the lots are the principal residences of the occupants.
(c) A meeting of the association if the agenda includes a proposal to remove a director from the board of directors.
(d) A special meeting of the association called at the request of owners under ORS 94.650 (2).

The rule about not conducting annual homeowner meetings by written ballot is often disregarded by the majority board so that they may get their voting recommendations out and ask the homeowners to mail in their ballots before anyone else can respond with alternative voting recommendations. It is debatable whether a meeting is by written ballot or not when the homeowners are advised to mail in their ballots (and a majority do) but they can also bring their ballots to the meeting. I feel that the majority board has an unfair advantage when mail-in ballots are used. The votes are counted at the meeting but most of the votes were cast without the influence of the meeting.