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amendment

Started by DonaldS9 • 12 replies • 1372 views

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DonaldS9 (Arizona)
Posts: 1
Posted:
The declaration of the HOA said that it could not be amended without a 66.67 vote of the unit holders. The board mailed out ballots, but because of absentee owners, landlords etc., the board only received 60% of the ballots were returned, but of those ballots 66% of the ballots indicated voted for the change in the declaration. The board determined that the 60% constituted a quorum and, therefore, agreed to the change to the Plat of the condominium because 67% of the returned ballots voted for the change. Did a change occur?
LarryB13 (Arizona)
Posts: 4,099
Posted:
Donald,

2/3 of the unit owners is not the same as 2/3 of the 60% who responded. If I have done my math correctly, only 40% of your owners have approved the amendment. Your board is inviting a lawsuit against itself if it tries to cram this amendment down the throats of the other owners.
CarolR11 (Colorado)
Posts: 2,563
Posted:
I'm not involved in the legal profession either, but I believe that Larry is correct. 66.67% of ALL (eligible?) unit owners needed to vote in favor of the amendment.
EllieD (Vermont)
Posts: 446
Posted:
DonaldS9,

I am not an attorney – but I agree that 2/3 of the unit owners is not the same as 2/3 of the 60% who responded. Also, quorum typically does not enter in, when obtaining approval votes to amend a Declaration.

Would you be willing to provide some additional information?

What are the exact words from the Declaration that specifies “how it is to be amended”?

Approximately how large is the Association,how many units? Is the Declarant completely out of the picture? Are you self managed, or is there a management company?

You posted “agreed to the change to the Plat of the condominium”.

If it is the Plat that is being revised, would you tell us in general “what” is being revised? Depending, the change or changes could affect some or all of the Deeds. Has that been considered?
TimB4 (Tennessee)
Posts: 21,059
Posted:
Quote:
Posted By DonaldS9 on 01/20/2014 1:59 PM

The board determined that the 60% constituted a quorum and, therefore, agreed to the change to the Plat of the condominium because 67% of the returned ballots voted for the change. Did a change occur?

Did the change occur? Based on the fact that the Board said it did and, I expect, will file the change with the courthouse, yes the change occurred.

Will the change withstand a legal challenge (if one decides to challenge the change)? Based on what you posted, in my layman's opinion, NO it would not.

Your Board did not do the members any favors

67% of the membership (unit holders) is not the same as 67% of the votes cast.
67% of the membership (unit holders) is not the same as 67% of eligible votes.
67% of the membership (unit holders) is not the same as 67% of members in attendance.

I would suggest that you bring this issue up to the Board PRIOR to them filing the change with the county. Basically, the issue is the interpretation of the wording. Perhaps they should get a legal opinion. $600 now for a legal opinion will be far less than thousands later to defend their interpretation of the CC&Rs.

JoK2 (California)
Posts: 198
Posted:
Perhaps you could ask to meet with the board privately to have them explain how they came to this decision. From my personal experience, they could be going on the advice from their management company and their interpretations. Then at the same pow wow you can express your concerns for the legal aspect if they don't read what you've read and the math given here.

TimB4 (Tennessee)
Posts: 21,059
Posted:
excellent advice Jo
JohnB26 (South Carolina)
Posts: 1,569
Posted:
DITTO

imo: this needs to be corrected ASAP

contact the Register of Deeds and file a 'challenge' (not sure of the proper terminology)

contact the HOA's registered agent certified mail, return receipt

since You now know it was improper - YOU must take action !

or, hold your peace

JeanneK3 (Maryland)
Posts: 562
Posted:
JoK:

You've made a very important point. In Maryland we have unlicensed association managers who make up policy to suit themselves rather than what is legal and right. A pending Maryland bill, HB00010, "Regulation of Common Ownership Community Managers"will be heard January 30th in Annapolis. I'll be there testifying in favor of the bill.

Jeanne
LarryB13 (Arizona)
Posts: 4,099
Posted:
Same in AZ. No license required to manage an HOA or condo.
JoK2 (California)
Posts: 198
Posted:
Quote:
Posted By JeanneK3 on 01/21/2014 7:45 AM
JoK:

You've made a very important point. In Maryland we have unlicensed association managers who make up policy to suit themselves rather than what is legal and right. A pending Maryland bill, HB00010, "Regulation of Common Ownership Community Managers"will be heard January 30th in Annapolis. I'll be there testifying in favor of the bill.

Jeanne

Well that can't happen soon enough! That's wonderful to hear! I will check that out now, good luck!
JoK2 (California)
Posts: 198
Posted:
Quote:
Posted By JeanneK3 on 01/21/2014 7:45 AM
JoK:

You've made a very important point. In Maryland we have unlicensed association managers who make up policy to suit themselves rather than what is legal and right. A pending Maryland bill, HB00010, "Regulation of Common Ownership Community Managers"will be heard January 30th in Annapolis. I'll be there testifying in favor of the bill.

Jeanne

I've been thinking and wanted to know more about Thursday's hearing, are with a particular group that is testifying? Our previous PM really made a mess of things, and would be interested in more information. Thanks
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Quote:
Posted By DonaldS9 on 01/20/2014 1:59 PM
The declaration of the HOA said that it could not be amended without a 66.67 vote of the unit holders. The board mailed out ballots, but because of absentee owners, landlords etc., the board only received 60% of the ballots were returned, but of those ballots 66% of the ballots indicated voted for the change in the declaration. The board determined that the 60% constituted a quorum and, therefore, agreed to the change to the Plat of the condominium because 67% of the returned ballots voted for the change. Did a change occur?

I think clarification is needed. Do your docs say 66.67% of the owners must vote YES to modify? Or do the docs say 66.67% must vote and if so, how many of the 66.7% must vote YES to modify?

Quite common for docs to say that 66.67% of all owners must vote YES to modify amendments as amendment changes are considered to be serious.

Regardless, the 66.67% was not achieved thus I say there should not have been a vote at all.

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