"any instrument executed" question

In conversation with a friend in a neighboring HOA community she asked me this question about her governing CC&Rs, I don't want to steer her into believing something untrue and I'm no expert so I'm asking you people.

Looked up her CC&Rs at deeds office they say:

"18. These restrictions shall run with the land and be binding upon all parties, including the Declarant and all lot owners and all persons or entities under them for a period of twenty years from the date of recording of this instrument. This Declaration may be amended, changed, added to, derogated or deleted, at any time and from time to time upon execution and recordation of any instrument executed by the Declarant as long as the Declarant owns any lot after which such power shall pass to and vest in the HOA. These restrictions shall be automatically extended for successive periods of twenty (20) years unless changed in part or in whole by written instrument signed by the Declarant or HOA as the case may be."

Her HOA has been running the HOA for about 4 years now. Declarant no longer involved. They have never amended their CC&Rs or attempted to. Her question to me was this:

Would her HOA be required to get signatures of HOA members, and if so since her CC&Rs do not state what percentage to amend what would the required percentage be? Would each member of the HOA need to sign/consent to the amendment change?

She is in South Carolina too. Lately I always seem to get into this HOA topic with people, I wonder why...lol.

Any opinion welcome

thanks

Thanks,

I am reading her governing documents now and the only other mention of a percentage would be #15. in her CC&RS it says:

"15. The owner (s) of each lot shall be a single member of the Blank Blank Homeowners Association (hereinafter the "HOA"). The owner(s) of each lot shall be a single member having one (1) vote in the HOA regardless of the number of owners of any lot. The HOA shall be a not-for-prifit South Carolina coporation. The HOA shall be governed by a three (3) person Board of Directors elected by the members. Each lot shall have one (1) vote which must be cast as a whole and may not be split between owners if there are multiple owners of a lot. All decisions of the Board of Directors or of the members of the HOA shall be by simple majority of all members except as provided herein. Voting on all matters shall be formally called (on at least ten (10) days written notice) meeting of the Board of Directors or membership as the case may be. Alternatively, voting may be mailed written ballot. The Declarant may convey his ability to modify said restrictions to the HOA. In the event Declarant no longer owns lots in the Subdivision, HOA shall be entitled to modify said restrictions.

She (and I) are confused because #15 says one thing but not specific about amending the CC&Rs and says after the "simple majority of all members except as provided herein", and then following it provides with #17 a specific referrance to the subject of a CC&R amendment of restrictions, and seems to indicate a signature is needed vs. a vote and further more in #17. it does not specify the percentage needed it just says "Declarant or HOA.".

I realize she can and probably will ask her BOD but we were interested on what people at HOA Talks opinion would be since opinions seem to vary on these matters.

thanks again

imo:

based upon YOUR facts

a majority of ALL members would be required for a CCR amendment

that is: OVER 50% actual aye votes from the TOTAL membership

abstention = nay

nay vote = nay

non vote = nay

eg,

140 homes would require 71 aye votes (preferably signed ballots) to amend (70 votes is NOT a majority)

sorry

"means any signature would be needed" should read "means no signature would be needed"

sorry

Stripping away the extraneous stuff (like the declarant who is no longer in the picture), here's what your friend has:

"18. These restrictions shall run with the land and be binding upon all parties and all lot owners and all persons or entities under them for a period of twenty years from the date of recording of this instrument. These restrictions shall be automatically extended for successive periods of twenty (20) years unless changed in part or in whole by written instrument signed by the HOA."

"15. ... All decisions of the Board of Directors or of the members of the HOA shall be by simple majority of all members except as provided herein. ... HOA shall be entitled to modify said restrictions.

18 is fairly standard with one exception - Signed by the HOA is vague.

15 has a significant ambiguity in it. Does it take a majority of the "members" of the Board to make a HOA decision, Does it take a majority of the "members of the HOA to make a HOA decision, or Does the majority of the "members" of the HOA only apply to changes to the CC&Rs? Could be argued a bunch if different ways.

Re the "except as provided herein" phrase, many HOAs have different levels of voting requirements for different types of decisions. Higher percentages are usually found in specific clauses and those greater percentages apply to the specific clauses. However, the most stringent percentages typically involve changes to the CC&Rs. Here, the basic majority appears to apply to changes to the CC&Rs. So the "except as provided herein" appears to be a red herring.

In all, it's poorly written. Could definitely use a rewrite.

On the other hand, your State probably has default rules that a court would typically apply if the ambiguity stood in the way of having a clear answer. Your default State rules may even require that something like a 2/3 vote is required for amending CC&Rs and that the Statute overrides a lesser percent in the HOA docs. It's all in the details. First place to look is state statute.

Nps,
Thank you for your reply, yes it does seem poorly written. This neigborhood is not far from mine and although they aren't she had a different developer/declarnt than myself, they know each other and my developer worked on homes in her neighborhood. Maybe that's why my CC&Rs are so poorly written also.....lol.

I will look into whether my state has any default rules that could be applied towards ambiguity in this situation. (If not I guess if she runs into problems she may need clarification from the courts too.)

your thoughts are appreciated,

Emma

*this HOA business is such a brainteaser, who needs crossword puzzles once you have this......lol.

Emma,

I think the paragraph that gives the Declarant the right to amend while he is in control and then passes his right to the HOA empowers the association to adopt whatever procedure it wishes for amending the CC&R's.

Actually this language is in our documents. It's typical statements I have seen in other HOA's. The problem here is that the owners who are in control never took the initiative to change the documents to rid references to the developer or update their documents. We had to modify our documents and remove all references to the developer. This included their voting system, addresses, and rights. They had already turned over our HOA almost 20 years ago.

This is an issue that will require the HOA to hire an attorney to draft the changes and then file them once completed. The HOA will need to gather the signatures from the owners and give them to the attorney for proper filing. A lawyer familiar with HOA's or corporate/contractual laws should be used. This is an area not using an attorney may do more damage.

Bob
How pervasive are Torrens systems in Canada? In States, only Mass and Hawaii still have anything like it.

Tim,

As I said there is a lot in common with mine. It is from one of the Mom's of my son's teammates. She lives close to me, so does the original Declarant who I knew worked in her subdivision (he told me). Her builder/Declarant was a business partner w/my builder (still is). As I said mine was my builders first subdivision on his own (probably his last ever...lol). I called my friend up specifically to talk about her HOA knowing the similarity and connection was there. ( Aren't I a good dectective? lol.)

It seems like my Declarant used parts and portions mine is even more of a mess, poorly written. You are right that in my case the Declarant issue is unsettled (according to the BOD, they are the ones that say their is not a Declarant with any control.)

I'm not saying my Declarant was a bad person he said his intent in the vagueness was not to be strict, to be more relaxed. He did not want this small neighborhood to be full of bureaucracy. This was one of the reasons I purchased here I liked his intent for the neighborhood.

So Tim I would rather not keep bringing that particular circumstance into all of my posts since it confuses people every time and leads off subject, but thank you for your opinion.

I do however agree with Nps that the quoted #15 and #18 are very poorly written and have some vagueness that a contract attorney should look at before her HOA were to try and amend anything. She said that they know there is reference to the Declarant left in their document and they don't see any need to amend just for that. Their way of thinking is if it refers to the Declarant and he's gone it's just ignored and why spend money on attorneys to change it.

Thanks Tim

NP,

I don't think it's that ambiguous. It's actually fairly plain (although I don't necessarily think it's a good idea or the best wording).

Decisions made by the members require a simple majority. Therefore, any decisions that the membership has authority to make requires a simple majority (the annoying thing is that it likely applies to elections as well which will cause issues down the road as apathy sets in).

Decisions made by the Board require a simple majority. Hence, any decision that the Board has the authority to make requires a simple majority (which is how most Boards operate).

Tim,

I think it could be argued many different ways and probably if they wanted to someday make a major and controversial change It may have to before a judge/court to seek clarity through obtaining a "Declaratory Judgment".

I think the fact that there were so many different takes and opinions on this subject is proof that it could be looked at more than one way.

Emma

I received excellent and differing feedback earlier from: Sheila, JohnB, Nps, Bob, Larry and Melissa and all of it stayed on subject and gave me information for me to investigate further on my own. It was very helpful and not confusing.

Tim I honestly found that line to be a dig or an attempt to cast a bad light on me. It seem like an attack trying to stir up some past hostility towards me. I was surprised to get that from you when things have been so civil today. Differing opinions maybe a little joke here and there but nothing like that. And then doubting the truth in my post coming from you I was a little taken back. (But I still like you)

sorry Tim you asked, I'm being honest.

So what part of my opinion on those documents did you find confusing or what part of my opinion on those documents do you not agree with and why?

Gotcha.

Tim, you seem like a very wise owl.

You seem to be knowledgeable in many areas, many, many times.

You seem to have no problem pointing out what your opinion of my flaws are. Thank you for your personal opinion of my character flaws.

I do not understand what all of what you just said has anything to do with the initial post.

I pointed out that all those other people simply commented on the subject of the post (which had nothing to do with my subdivisions Declarant or me shooting the messenger in past posts or anything else that you bring up.)

I never said your opinion on the subject was confusing or bad or I did not like your opinion.

I said your bring other issues into the thread would be confusing to others. That is what I said. And that is what happened once you posted. It became personal and the thread was/is ruined unless someone is nice enough to skip over our silly back and for discussion.

I can promise you, I will not let this happen again.

It is not fair to anyone. I will research further my original post and when I do get an opinion from someone in the legal profession I'll bring this post back up and share their viewpoint on the matter, In case anyone is interested.

Thank you

Janet,

Thank you for your comment, I tend to agree. Some fact checking with a attorney will be required I think. I think this goes beyond HOA usual business and into areas like you mention affecting property titles, I think everything would need to be legally clarified so the HOA would not be vulnerable to anything like a "slander of title", etc;. I always say better to be safe than sorry.

thanks for sharing your opinion,

Emma

Talk about "the pot calling the kettle black".

I feel some (not all some) of you are very used to your opinion being regarded as gospel and to be frank a little bit of "the know it all" syndrome as if you are insulted if your advice is not taken.

If you happen to be the one who dishes it out I'm may just give right back to you. Respectfully if that is how its presented to me.

I don't think some of you are used to that!

You are not going to scare me away because I sometimes have a different opinion than some of you, and I am not going to let you try and turn the tables by acting like I'm simply a "brat" because I don't have the same opinion that you do.

You say you have the ability to agree to disagree yet you are relentless on proving YOUR opinion is the only correct one.

Like some others have said before if you don't like me pass on my post. (But if you think your going to just come in and insult me on a forum which is very cowardly then you might get a run for your money depending on my mood at the moment.

You guys are tiring me out so I'll try and ignore your elementary school behavior, sticks and stones will...... LOL LOL LOL

How old are you guys anyway?

One last question:

Have you ever been wrong or said something wrong and said your sorry, or are you always right?

(I have not come across any of those threads yet)

Don't know if that was directed at me or someone else.

Trust me I am wrong alot. If you don't believe me, ask my wife. My wife is correct 95% of the time and the other 5% I am wrong

I have no problems (ok, maybe a few but I'm human also) with admitting I'm wrong. I believe others on here are willing to admit this as well. Keep in mind (as I will as well) that a different perspective doesn't indicate that someone is wrong. They are likely correct from the perspective they are seeing the issue from. The trick is to see things from the same perspective. Not to be in agreement, simply to understand each perspective and learn from it.

Your stuck with me anyway.

And you seem to use a awful lot of "I"'s in your posts Tim. Something "I" was picked apart for, "I" seem to recall.

anyway "I'm" not going anywhere and:

"I" stand by my opinion that your off the subject comments that had nothing to do with my original post, did this thread and anyone reading it ANY GOOD. Those of base comments initiated a distraction that "I" should have ignored and next time "I" will bite my tongue and wait for a poster that is interested in the actual topic to bring a new view to the thread.

Emma

Actually, I didn't think it was directed at me. However, I had just read that line about my wife being right today and saw an opportunity to use it.

I thought I was wrong once, but it appears that I was mistaken.