CC&R

Hi Brenda: Welcome to the forum.

Here is an article from Davis-Stirling: http://www.davis-stirling.com/MainIndex/CourtApproved/tabid/1318/Default.aspx#axzz3QNi1FgJg

I would suggest best way to avoid scenario is to get majority of owners to vote against the issue if that is their desire. The court is generally used when an association members have become complacent and apathy has set in place. If an HOA does not in some states want to be guided by courts or receivership, then members need to become involved.

Unfortunately, unless and until the other homeowners speak up, you might be stuck.

I know some associations have gone to court and asked for it to approve CCR revisions, but I believe they also have to show that they've made a reasonable effort to get people to vote one way or another. I've also heard some courts don't like to get into these kind of issues because homeowners do have a right to say no or not participate {even if it goes against their own self interests}.

Right now, your best bet would be to encourage people to cast their vote - if everyone votes no and you get the 2/3rds participation that's needed, there's no sense in the board going to court.

Brenda

While I am not a liker of Davis-Sterling, I did read the Kessler link. Two things struck me.

One was that the association would have to show that it did make a "good" effort to have a proper vote. They cannot just say well we knew it would not get approved.

Second was that at least 50% of the owners had to vote in favor. You alluded to apathy thus I would ask do you think you can get at least 50% to approve? Not just vote, but 50% to approve. Do you think 50% would approve?

We are attempting to make a Bylaw change. It will require more then 50% of our owners agreeing to the change. Not just 50% voting, but 50% agreeing as in yes. The way we handling it is we are going to mail a Proxy out with our Annual Meeting notice letter. We are also including a stamped, self addressed envelope for one to return the Proxy. We hope this will encourage people to return it.

The Proxy will allow the BOD Secretary to vote the Proxies as the BOD advises him. We are not asking the Proxy signers to directly vote on the Bylaw change. The Proxies will also be used to establish a Quorum. We are basically asking people to trust us. We will have those that attend the Annual Meeting vote Yes or No on the Bylaw change. The vote tally of the Proxies (a yes vote by the BOD Secretary) and those voting at the meeting will be counted.

We have been talking the Bylaw change up in our newsletter which reaches 70% of our owners. If we find we do not have as many returned Proxies as we would like, then several of us are going door knocking asking people to sign the Proxy.

Hope my explanation of how we are doing it is clear. Basically we are saying trust us. Sign and return the Proxy.

I see no way you can get the necessary changes approved without an active campaign and proxies.

How many homes/units in your association?

Hope this helps.

NPS

I understand.

As you well know Proxies can be tricky and they are often misunderstood by people and can be worded/used for devious purposes. This is why so many are scared of them.

The Bylaw change is from a greater then 50% Quorum (in our case 57 of 112) at an Annual Meeting in order to do business, down to a greater then 25% Quorum (29 of 112). SC Articles of Incorporation call for greater then 10% unless the ones Bylaws say otherwise.

While not a great liker of lawyers, we will be having our lawyer advise us and draw up the proper Proxy for our usage. Hoping he can keep it simple.....KISS....LOL

Thanks John. It's going to be difficult to get 50% approval. We had a candidate forum for election of our Board of Directors a couple of weeks ago, in 2 weeks we need to count the ballot. Total of 200 units, less than 70 returned the ballot so far.

On Bylaws: Do you know if it's legal to require all the homeowners to participate in the community functions, set a maximum term limits, and pick the candidate to serve on the Board or committees by rotary if not enough volunteer? Our current Bylaws has no maximum term limits and allows continuous serving of Board of Directors & committee chairs (appointed by the Board) which creates huge problems.

Brenda

In response to your first post, your CCRs generally will have a higher percentage needed to pass, like 67% approval, while your Bylaws, which are just corporate documents should only require approval of either a majority or 51%.

Unless you get 100 homeowners voting yes on your CCRs, I don't believe a judge would allow the documents to go through. Getting these types of documents approved require some efforts by the Board on its homeowners.

Your comment about not renting or leasing less than a whole house is very common in CCRs.

Unless your CCRs allow for a voluntary HOA, all owners MUST belong to the HOA, pay dues and abide by the rules put into place by the declarant/builder. It reminds me of the license plate frame, "Get in, sit down and shut up."

I see the overlap Richard! Good that we both say about the same thing.

And it appears we both overlapped with Brenda's 10:43 post.

So, Brenda, ... are you ALSO having an election of directors? You wrote: "It's going to be difficult to get 50% approval. We had a candidate forum for election of our Board of Directors a couple of weeks ago, in 2 weeks we need to count the ballot. Total of 200 units, less than 70 returned the ballot so far. "

Are owners voting for directors, bylaws revision and CC&Rs revision all at the same time??? I'm very confused!

The required quorum (present in person or by absentee ballot) to elect directors often is quite low, let's say 25% of all owner. If you get that 25% , then a majority of that quorum determines the election outcome for directors. If you do not get 25%, the election meeting usually is adjorned to a new date.

Your current or raised bylaws would establish term limits if any. CA does not require them.

You asked, Brenda: "Do you know if it's legal to require all the homeowners to participate in the community functions..?" First I don't know what community "functions" means, so I cannot try to reply.

Brenda, please follow Janet's advice waaay above and go to davis-stirling.com, Main Index, Elections. The site is specifically about CA legislation and give you a start in learning about HOAs in our state.

You stated you wanted to update to conform to new laws? Technically there is no need to update them if state laws outdate them, at least not to the tune of spending money on attorneys.

You may be able to just send out an update letter to the HOA, spelling out which ones are not longer valid due to new state laws and you don't want to spend tons of money to wipe that section out.

Would this pass the sniff test?

Sorry for the confusion, Kerry. I guess I should not have added more questions under my original question under CC&R.

No issue on proxy. We can vote by mail. Board of Directors election is separate from updated changes on Bylaws and CC&Rs. We'll know the outcome soon (there's other issue I'll talk about it separately) and next step is distributing updated Bylaws & CC&Rs.

Current Bylaws may be adopted, amended or repealed by the vote or written assent of members holding 2/3 or more of the total votes.

Current CC&Rs may be amended by the vote or written consent of not less than 2/3% of the Members.

Here's the wording on updated CC&Rs (not from Bylaws):

Rental of Entire Lot. No Owner shall rent or lease less than the entire Lot. The preceding sentence is intended to prohibit the operation of a rooming house or similar operation within the Development. No Carport, accessory building, or other facility shall be rented, leased, or hired to anyone who does not have the right of possession of the entirety of the principal building on the Lot. This Section is not intended to prohibit a resident Owner from sharing his or her Lot or Dwelling with a roommate or other person(s) with whom the Owner maintains a common household.

I understand that the last sentence indicate" its not intended to prohibit a resident owner... maintains a common household". However, if an owner rent his or her rooms out isn't that the same as "rooming house"? Is the language above clear to you that an owner who rents out some rooms to anyone while occupy the same lot is 100% safe?

Yes, the committee chair said so and the Board support the idea to go through judicial approval.

Thank you so much for all of your input! I really appreciate it!

I think the key word is "household." This implies that the property owner and the persons living under the same roof are bound by some relationship beyond that of landlord and tenant.

Yes, that "Household" bothers me.

I also doubt would possibly pass. However, I completely understand your point of view. Too many people purchase in HOA's with the I will do nothing attitude. Then you have those who have served the community for a long period of time are now weary and would love a short break, but nobody is willing to step up to the plate and help out. I also see apathy more often in smaller communities where individuals serve more often due to fewer owners vs larger communities who have more volunteers.

The only way to potentially get owners off their tail ends would be to give them a possible ultimatum they do not like and which would hit their pocketbooks. To execute should be a LAST resort as it could cost owners much more in assessments. However, sometimes when owners are made aware of that option for running an HOA and the fact that the individual so running might be an attorney charging big $ per hour to conduct HOA business simply because everyone is not willing to take their fair share of responsibility or donate their fair share of time can get peoples attention. Again, it should be an absolute last option to put in motion, but many general owners are not aware of Receivership.

Here are some links for information:

http://www.davis-stirling.com/MainIndex/CollapseofHOA/tabid/1464/Default.aspx#axzz3RDh9k4DY

http://www.davis-stirling.com/MainIndex/Statutes/CodeCivProc7234/tabid/3025/Default.aspx#axzz3RDh9k4DY

I stated many owners are not aware of this in some states. Sometimes just making them aware can have desired affect of getting many off their tail ends to help out. Unfortunately most HOA's have a few complete total deadbeats that nothing will phase, but you generally would not want those serving the community anyway.

It took us almost 3 years to change or documents. It cost us about $3K with filing fees and lawyers. It was just 5 simple necessary changes like removing al references to the builder and changing to separate water meters. We did have the "special meeting" requirement but was able to by-pass it by having members sign an agreement to cast their vote NOT in a special meeting.

When you file the documents, as one poster found out, there has to be PROOF signatures of approval. Which means you have to have the signatures on a document/petition. If that petition is not signed by the required number or does not exist, you can not file.

Ours was simply a statement on top stating the following agree to modify the said documents and then signature, printed name, date, and lot#/Address. We had a separate one with the agreeing to skip the special meeting. We put the changes on a different document for people to see the 5 changes on their own. Made it easier to gather the 90% we needed for the CC&R's. ONLY members can sign. No tenants.

Yeah it's always best to ignore advice based on someone's state... Good advice right there... So tired of that crap! People should have the common sense to know to investigate and research no matter what state the poster is from before proceeding... Good lord give some people some credit...

Sorry if I am a little short tempered been fighting a staph infection and find myself having little patience with little minded people...

I have video tapes of our meetings. I like them because there can be no he said or she said issues. I also like them because any law or document violations can be proven beyond any reasonable doubt ... therefore, violations generally reduced. Of course once in while you still have complete idiots who will violate on camera. LOL ... Sorry you can't fix "stupid".

Brenda, Here are excerpts from one of our CC&Rs' articles "An Owner shall be entitled to rent the Owner's entire Condominium (but not a portion thereof)..." And, no Owner many lease a condo "...for hotel, motel, or transient purposes..."

It looks to me like ours say what yours will say if approved. But we have numerous housemate situations here. 80% of our condos are 2 bd, 2 ba. In cases where an owner occupies a unit, the common reason for unrelated roommates coming in are the Owning couple breaks up, one moves out, the one who's left rents out a portion to help with payments. In some cases one owner dies and the widow(er) takes in a housemate for company. In my 8+ years on the Board, we've never bothered checking the marital or relationship status of two seemingly unrelated people in a condo.

A second reason is when an elderly Owner brings in a live-in caregiver to share the condo.

Here's what your proposed CC&R article will say, Brenda, from your 2/8, 10:30Pm post: : "Rental of Entire Lot. No Owner shall rent or lease less than the entire Lot. The preceding sentence is intended to prohibit the operation of a rooming house or similar operation within the Development....This Section is not intended to prohibit a resident Owner from sharing his or her Lot or Dwelling with a roommate or other person(s) with whom the Owner maintains a common household."

In my (non-legal) opinion, the last sentence says you may still have housemates or roommates. I think that your new CC&R article, if approved, tries to avoid turning homes into rooming houses or transient very short term rentals, in other words commercial enterprises.

So, do ask the HOA attorney at the Q & A session what the proposed revision means. Be truthful! Also ask him, of course, about the requirements to go to court if (when!!??) there aren't enough votes to pass your revised CC&Rs. His answer should quiet down your committee chair.

Next, I cut this from the middle of your above because it causes confusion: "No Carport, accessory building, or other facility shall be rented, leased, or hired to anyone who does not have the right of possession of the entirety of the principal building on the Lot."

We actually have a similar CC&R about the deeded parking spaces in our underground garage whereby we can rent them out, but only to residents in our twin high rises. No one living off our premises may sign leases for these spaces. I think this part of the proposed change is meant to keep non-residents of any kind off your HOA's premises.

You're right about the Davis-Stirling site advising against taping meetings. But that is not a topic for CC&Rs revisions. In other words, your HOA could add a rule (not a CC&R or bylaw) that taping is permitted at open meetings or whatever. Do a search here and you'll see numerous discussions about this topic. But if you want to pursue it, please start a new thread as it does not fit your subject line of "CC&R."

In other words, you've been running a boarding house for years but now they are trying to tighten up the CC&R's to close whatever loophole you've used. Not to worry like others have said the Board has to show a good faith effort to pass them before they they can try the court route.

Brenda:

Homeowners do not have to accept. As others stated your "Chairman" is potentially full of BS. First of all it is not one persons voice but must pass approval of your entire HOA board to pursue court action. AND prior to taking any such action they must PROVE that more than majority of owners ( i.e. 51% or more) would agree to proposed action.

You stated: " No Owner shall rent or lease less than the entire lot unless it's the situation where owner is sharing the house with a roommate or someone the owner maintains a common household." Potentially you renting rooms to help pay bills IMO would be considered "sharing the house with a roommate" and exempt from the proposed changes.

Janet

Having worked on a number of Governing Doc re-writes in California the process would be for the Board to approve the product(s) prior to having the membership vote on. The documents, once approved by the Board, must be sent to the membership for a 30 day comment period. If there are ANY changes, it must go through the same process until it goes to the full membership for a secret ballot vote.

If you can't make quorum, which will be either a majority or 51%, to open the ballots, no judge will take the case. You must have a minimum of 51% yes votes for a judge to even consider hearing the case. There are no guarantees. So for every 100 in your community, you'll require 51 ballots and 67 yes votes.