amend covenants by signed document

our declaration says "this declaration may be amended by an instrument signed by the owners of 67% of more of the lots". We the owners, got an instrument signed for 70%, but not inside a meeting because the covenant do not say that is necessary. It is this document legal enough to be recorded?

If there had been a meeting, then one of the concerns would be whether 100% of the owners were notified in advance and had a fair and reasonable opportunity to object if they wanted to. If no attempt was made to contact all owners, the vote could be challenged ever if the 67% vote was achieved.

IMO, the lack of a meeting heightens this concern.

So I would hope that you reached out to everyone and documented what you did.

Yes, when filed with the county unless there is a state statute with which you did not comply. You could chose to check with your Managing Agent or with an HOA attorney.

My CC&R's have similar language. There is no requirement for a meeting. In my opinion, you should record the document(s) without further concern about how their legality.

Richard,

Can you cite the provision in CA code that would effectively prohibit amendment by instrument even when that is the process called for (or allowed) in the CC&R's? The Davis-Sterling website does not clearly address this matter.

Do you think executing an instrument would qualify as a members' action without meeting?

I would say yes. "An instrument signed by..." is often a means of amendment that is available in addition to voting at a meeting. I think meeting votes normally require a board vote and a members' vote (with quorum and percentage conditions) while "an instrument signed" does not require a board vote.

An affidavit by someone that alleges a proper vote was taken and approved is not the "instrument" contemplated in my CC&R's and not likely in the OP's. If the declarant meant to do that he would have said so. The OP's CC&R's state "instrument signed by the owners of 67% of more of the lots." That is certainly not a reference to an affidavit about a vote.



So the board wants to cram an amendment down the owner's throats and levies fines against all owners but themselves. They pass the amendment with 100% approval.

In the OP's situation (and my own), ownership entitles one to sign or not sign and approval is a percentage of all owners, not just those whom the board allowed to vote.

I am curious if you know of any court opinions upholding restricting voting on CC&R's to only those owners that the board approves of; that is, those in good standing?



My own CC&R's and apparently the OP's do not require either notice or secret ballots. If 70% of the owners approve by signing the amendment, what purpose would an election serve?

BTW, one of the advantages of circulating an instrument is that it does not require board approval or board participation; any owner or group of owners may seek signatures from any other owner and they have all the time in the world to do it. The only hitch is that if one takes too long that some signatures may be invalid due to sale of the property.

If I were a judge I would be less than persuaded by being presented with an affidavit alleging that a sufficient percentage of owners had approved of an amendment if I their identities could not be verified and some owners were excluded from voting.

My question is still, does CA law prohibit amending CC&R's by means other than a secret ballot? Is that an exclusive requirement or are other means permissible if stated in the CC&R's?

I'll wait to hear form you Richard. My own understanding is that in CA, secret ballots are required to amend the CC&Rs and also bylaws. But I'm not looking it up today.

The first phrase after (a) seems to say secret ballots are required in CA for amending CC&Rs. But we don't know about FL or other states. In CA, this means double envelopes with signatures & property address on just the outside envelope, 1 or 3 inspectors of election, and any member who a wants to can watch the opening of the envelopes & ballot tabulation. Absentee ballots are permuted in CA.

DAVIS-STIRLING ACT
Civil Code §5100. Elections That Require Secret Balloting.

(a) Notwithstanding any other law or provision of the governing documents, elections regarding assessments legally requiring a vote, election and removal of directors, amendments to the governing documents, or the grant of exclusive use of common area pursuant to Section 4600 shall be held by secret ballot in accordance with the procedures set forth in this article. [Old: Civ. Code §1363.03(b)]

Read more: Civil Code §5100 http://www.davis-stirling.com/MainIndex/Statutes/CivilCode5100/tabid/3783/Default.aspx#ixzz3mKpcwWmU
from Davis-Stirling.com by Adams Kessler PLC.

Joyce

I see two issues:

1. Is this signed document proper/legal?

2. Is the amended Covenant legal?

You will need a legal opinion on both before implementing.

Yes, the main concern is whether they obtained their "instrument" legally as defined in their governing documents. And yes I agree that the other 30% wouldn't be relevant unless they in fact, chose to not follow the correct procedures.

Here is the attachment

Here's the language from my HOA's CCRs:

"This Declaration may be amended by the affirmative vote of a majority of the Board of Directors of the Association and the affirmative vote of the majority of Members who are voting in person or by proxy at a meeting of the Members at which a quorum has been attained (e.g., once a quorum of those Members attending in person or by proxy has been obtained at a regular/annual or special meeting of the Members of the Association, a majority of those Members attending the meeting in person or by proxy may amend this Declaration). Alternatively, this Declaration may be amended by an instrument signed by not less than a majority (i.e., 50% plus one) of the Members provided, however, that no amendment or change in these restrictions shall affect the ownership of residences or the rights of owners to parking areas, driveway and ingress and egress."

Florida statute 720 is largely silent on amending the CCRs for homeowners associations and leaves almost everything to the association's governing documents. It does place restrictions on changing the proportionate voting interests and has some other requirements where mortgagees have to sign on in certain specific cases.

What this says to me is that a homeowner can go door to door and, if he or she can gather 51 owner signatures, force an amendment to the CCRs regardless of any action or inaction on the part of the board. Assuming the change is legal, of course.