improperly filed amendment CCR

How was it misfiled? You usually have to pay a filing fee to file it. We used a lawyer to do so. Not sure if that is a requirement to use one, but we did. We had to get the vote of our membership to sign a document agreeing to the changes and not to be forced to attend a special meeting to decide. This way we could go door to door to collect signatures. Our lawyer had attached the changes and then they later integrated into the filed document.

I am not sure how one can misfile but I would talk to where you filed to find out the issues. They most likely will charge you again for re-filing. Make sure to use your corporate seal if you do file again.

Do you have a copy of this? That would be the document everyone was to have signed. It is important as to reflect you truly do have the majority vote you say. Be careful to make sure they are actual owners that have signed and not just residents. It took us almost 3 years of gathering signatures so I know how important that document is.

Like I said before, our lawyer drafted us up an additional document so that we could "give up" our right to a special meeting requirement. A VERY helpful document as otherwise to collect the signatures we would have had to hold special meetings to gather these signatures. Signing to give up the right to go to this meeting and signing the document for the change allowed us to go door to door or have it at our regular meetings to sign.

BTW, this is just why I do not like the idea of voting for amendments to the CC&R's. There will now be a perpetual dispute as to whether there was enough votes, who voted, when they voted, what they voted on, whether there was proper notice of a vote, whether the secretary lied about the number of votes, etc.

Life is much easier when owners sign a document that signifies their approval and the signed documents are recorded.

As far as I read, there is no requirement for a signed document and there is no known signed document. Would a tally of collected votes be all that is required and a production of said such votes and proxies be sufficient? Would these need to be filed as supporting documents?

Our CCRs are stated as:

“These covenants, restriction, easements, charges, and liens of this Declaration may be amended, changed, added to, derogated, or deleted ant any time and from time to time upon the execution and recordation of any instrument executed by Owners holding not less than two-thirds (2/3) vote of the membership in Association”

Mike,

When our Association amending our governing documents in 1993, all that was required for the CC&Rs was a statement of witness signed by each Director (notorized). Our Articles of incorporation simply required a statement signed by the President.

Our attorney drew up the final version that was filed. You may want to consider this.

NOTE: Our Association files have the signin sheet, proxies, minutes and ballots of the actual vote in our files (well they have been digitized (scanned to pdf) now). This way, if someone desired they can verify the count. If needed, the Association can defend the amendment.

There is documentation of the proper amount of votes required to amend in the form of paper ballots. That is why I questioned, cannot we just re-file with supporting documents? Or file the documents as an addendum?

Mike,

After reading the above passage I do not believe that your amendment was ever properly adopted to begin with. The above text states that what you should have filed was a document signed - "executed" - by a sufficient number of owners. I see no provision for holding an election.

What should have been recorded was one or more copies of the text of the amendment, each with the signatures of the owners. You could record one page with all signatures or multiple pages, each containing the text with signatures indicating approval.

I can see where the phrase "Owners holding not less than two-thirds (2/3) vote of the membership in Association" could cause confusion. Since it talks about votes one could easily infer that the CC&R's could be amended by conducting an election. Assuming that all owners have one vote and that the declarant is no longer in the picture, "two-thirds (2/3) vote of the membership in Association" is the same as 2/3 of the property owners. I suspect that the phrasing was meant to protect the CC&R's from amendment by the homeowners while the declarant was still in control.

I disagree with your opening statement that "there is no requirement for a signed document." That is precisely what your CC&R's require. An "instrument" is a document and "executed" means signed.

My advice would be to start over from scratch and forget about trying to turn the past vote into something it never was and never can be.