I need clarification in the wording of our CC&Rs.

I have always turned to the experts (who post to this HOA discussion forum) who have given such great advice to me and to others who care about their community.

I’ll try to keep this short. I apologize in advance for the long post, but your opinions certainly help me to make the necessary improvement and changes, that I feel will help me and my neighbors for many years to come or at least while I’m still living here.

As many of you may recall. I have been actively pursuing the ability for our community to “opt” into a POA oppose to remaining an HOA. The board had fully comprehended that we would need 2/3 of the community approval before such could take place.

The board and the majority of my community,assumed(you know what they say about assuming?) That in order to be eligible to vote, you must be a lot owner in good standings, meaning that you must be current on your assessments, fine, etc to even be eligible to vote at all. The board was under the assumption that we would needed 2/3 of the eligible voters, not the total number of lots.

I’m no neurosurgeon or rocket scientist by any means, but I have experienced plenty,(in my life time)to know that this is BS. This doesn’t seem to make much sense to me or too many of the other residents of this community.

So essentially, our property manager is saying that we need 181 votes approving the amendments to the governing documents.

By the end of the year we generally only have one or two delinquent accounts, but as of right now (I know) our delinquency rate is extremely high, (approximately 144 lot owners, which means those homeowners that are not current are most likely not going to vote for or against any of the provisions (they are part of the reason we are interesting in being a POA, in the first place) if they even vote at all (which again in another post all in all)

The PM had received “advice” from the attorney saying that because the CC&Rs states “this declaration may be amended upon the affirmation, vote or written consent of the Owners of at least (2/3) of the LOTS and the consent of Declarant.

Just to make clear we are aggressively pursuing all delinquent accounts, with the collections attorney, liens have been filed. We have gone to court, but it is a very long process, that we are attempting to correct.

We have 275 LOTS, so basically we need 2/3 to vote fore or against the amended provisions to the governing documents.

I guess my question would be is this how it is to be, if so then so be it as it may. If that is the truth, can we extend the ballot date as often as needed until all 275 lots have voted, either for or against?

Thanks as always
Chuck W.

RogerB,

As always I appreciate the quick response. I was afraid that’s what I would be told. I do believe that the ballots when mailed the first time said the due date was April 19th, the management company mailed out a notice in yesterdays mail extending the voting until May 25th.

Question when May 25th is upon us, what if we do not have 184, ballots returned for or against the amended provisions? Can the board extend the due date yet again? Should we have stated that the due date had been extended with that particular date (5/25)?

Tomorrow the president and I plan to make and post signs near the exits of the community notifying the residents that their POA voting ballets has been extended to May 25th.

There is a difference of opinion between what can and can not be written on the sign. According to our PM, who was advised by the POA attorney, supposedly!

I feel that the sign should say that your ballot is required. The PM said that you can not demand the homeowner to return the ballot, if that is the case then I’m fine with that, but I feel in order for the POA to be approved or denied then I don’t see how we can’t use the word required.

Personally I would rather receive all 275 ballot’s voting against the provisions then to receive 250, mixed votes meaning after sorting them into a for pile and against pile you have a 60/40 or a 70/30, 80/20 or even 90/10 either way it would be completely for or against it, because I know for a fact there are at least three homeowner that voted for all, that would be the board.

Thanks
Chuck W.

JulieS, some of that is may be against the statutes in the state. I am pretty sure much of that would not be allowed in Florida for example. Check your state statutes to make sure.

Roger:
Re your quote..."Chuck, I believe you need 2/3 of 275 Lots, or 184 Lots, voting yes (to approve) the amendments to the Declaration before it can be filed with the county and become official. Every Lot counts including those who are delinquent. If the signed ballots do not list a deadline then it can be extended...."

Are you saying that because this is a MAJOR COMMUNITY DECISION for an official document change/amendment to occur, that even though members are delinquent, they are able to vote while 'not in good standing'?

That is how I would handle it. What happens if the validity of the amendment is questioned in court and the judge rules that way. Think about this situation:

The covenants say that you need 75% to vote yes. It doesn't say 75% of those in good standing, just 75% that vote yes. You have three possible responses, not two: yes, no and abstain. Those you have removed the ability to vote are automatically abstain. If you took away from 10% of the people the ability to vote that doesn't lower the total number just the number that can vote yes.

Paul, I am saying there is a difference between a MEMBER and an OWNER. A member who is delinquent can be restricted from voting at membership meetings and use of common area facilities. But CC&RS require a percentage of ALL OWNERS to amend. So yes, it is because it is a major decision since the CC&Rs are part of the owners deed to their property. By comparison, the By-laws can sometimes be amended by as few as a majority of a quorum of MEMBERS present at a meeting.

Great clarifacation Roger!
I don't know how "abstain" would have any bearing - it is still a "no" vote. When there is a specific percentage required for approval, only "yes" votes counts. Everything else is a "no".
Actually in my opinion, changing from an HOA to a POA should require 100% approval. That is more than just a CC&R change. Harold

I appreciate all the suggestions as always, you always give such great advice. Being in this particular situation and not being or ever had been delinquent or late on my assessments, I can not see how all residents should be given the opportunity to vote! (I’m not saying if they are delinquent a month or two, and have paid their assessments in the past years, arrangements could certainly be made. I’m referring to the homeowners that are and have been delinquent in the assessments for sever months even years. Some are in the thousands, while I and hundreds of other HO pay their assessments every year, maintain our lawn, house, landscaping, watering, mowing, etc. the list can goes on, and on and on………. All of which costs me and my wife money that we would rather not spend, although it does avoid fines, liens, and possible foreclose.

While these “dead beats” live their lives every day in a community that (Im as a board member of) they’ve haven’t contributed too. I see all the money that goes into the community, I also know that the funds used are that of those who contribute to the HOA and they are HO that pay their assessments and that maintain their property, lawn and generally keep a very tidy appearance.

These (delinquent homeowners) choose to live in this HOA and they choose to loose the privilege to vote, no one took that privilege away from them. So with that being said I don’t feel that the homeowners in good standings should suffer, because of those that are behind in their assessments (month’s, even years).They shouldn’t be given the right to vote on something that will affect all those in good standing. That is just WRONG!

I can see the side of this that Roger and a few other speak of, by saying that these delinquent HO’s purchased a home in an HOA and not in a POA, which could have changed their decision to live here, understandable, but the information that has been provided indicates benefits to all. Not just to those HO in good standings, why should any homeowner who doesn’t contribute to the community, benefit from those that do, YEAH, that’s fair isn’t it?!

I’ll be honest with you all. I would prefer to get those “dead beats” out of here. When it comes time for me to sell and move out I’m sure I will have lost money (10-20 thousand dollars) because of my neighbors. I have a feeling that my property values are plummeting every year, more like every month. I’m spending thousands of dollars every year, to improve my property, and way of life and to not get it back in return isn’t a very wise business decision. I most definitely feel that being a POA will increase my property values and the values of those homes around me. So for me to feel that those not eligible to vote have a say in the selling of my home is BS!

I’ll try to keep you all up to date the close we come.
It appears that we will be going door to door to ask for ballots. We will be asking homeowners, why they voted against this or that to see if they fully understand the amendment to have made a good decision. It’s a long road but one that will certainly benefit me and my growing family.

Thank you all as always
Chuck W.