Amending our Declaration

CfD (Virginia)
Posts: 265

Posted:

Va. State Property Act says this:

D. A declaration may be amended by a two-thirds vote of the owners. This subsection may be applied to an association subject to a declaration recorded prior to July 1, 1999, if the declaration is silent on how it may be amended or upon the amendment of that declaration in accordance with its requirements.

Our association was formed in 2006 and our governing documents say this about amending our Declaration:

The Developer, during the
time the Developer owns any Lots, may make amendments to this Declaration
All other amendments or a rescission of this Declaration, unless otherwise
specifically provided for herein, may be made by obtaining the consent in writing
of the Owners of not less than a majority (51.0%) of all Lots which are subject to
this Declaration, not including those Lots Owned by the Developer. In addition,
and notwithstanding the above, until seven (7) years from the date of recording of
this Declaration, so long as the Developer owns or has under construction on
lands described in Schedules A and B of this Declaration (whether or not such
lands are covered by this Declaration) dwelling units equal in number to ten
percent (10%) or more of the number of Lots to which title has been transferred to
purchasers for occupancy, the written consent of the Developer will be required
for any amendment which adversely affects a substantial interest or right of the
Developer, which consent must not be unreasonably withheld.

The question: Do we need 51% to consent or 2/3 to consent for an amendment to our Declaration.

RichardP13 (California)
Posts: 3,868

Posted:

I would think 51%, as VA code states PRIOR to 1999 and WHICH are silent.

CfD (Virginia)
Posts: 265

Posted:

I'm reading it differently. The first sentence seems absolute saying 2/3. It goes on to say that if your dec. Was recorded prior to 1999 (ours was not) then this subsection "may" apply.

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By CfD on 11/19/2015 11:07 AM
I'm reading it differently. The first sentence seems absolute saying 2/3. It goes on to say that if your dec. Was recorded prior to 1999 (ours was not) then this subsection "may" apply.

The second sentence says the subsection applies to documents BEFORE 1999. Your documents, created after 1999 and not silent, would prevail. IMO

CfD (Virginia)
Posts: 265

Posted:

No problem Rich, but what the second sentence really says is this:

This subsection "may be applied" to an association subject to a declaration recorded prior to July 1, 1999...

In my view it is requiring 2/3 consent, and giving an association the option to apply this subsection if your declaration was recorded prior to 1999 and possibly silent on the issue. It is not telling an association it "shall" be applied. But I've been wrong before.

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By CfD on 11/19/2015 12:13 PM
No problem Rich, but what the second sentence really says is this:

This subsection "may be applied" to an association subject to a declaration recorded prior to July 1, 1999...

In my view it is requiring 2/3 consent, and giving an association the option to apply this subsection if your declaration was recorded prior to 1999 and possibly silent on the issue. It is not telling an association it "shall" be applied. But I've been wrong before.

Then, If your CCRs were created after 1999, why wasn't that specific language put into them. I read it as a remedy for documents that were silent. But again, just my opinion.

CfD (Virginia)
Posts: 265

Posted:

In other statutes of the property act the first sentence sometimes starts with "unless the declaration expressly provides otherewise". But this one does not. I don't know why our declaration does not say 2/3, hence the Q.

LarryB13 (Arizona)
Posts: 4,099

Posted:

The reason is found in the very first sentence you quoted, "A declaration may be amended by a two-thirds vote of the owners."

The operative word is "may." Your CC&R's are far more lenient, requiring only 51% of the owners.

There are CC&R's floating around that require 100% of the owners and 100% of the mortgage lenders to approve amendments. The statute you quoted put the brakes on that.

CfD (Virginia)
Posts: 265

Posted:

Thanks for the response Larry. It is my understanding that an associations documents can be more restrictive than state statutes, but not less restrictive. In my view 51% is far less restrictive than 2/3, so I would think we would need 2/3 to amend.

Am I misinterpreting your response?

JohnC46 (South Carolina)
Posts: 14,265

Posted:

CfD

I read it to say that it MAY (not even must) be applied to documents created before 1999 unless the documents say otherwise.

I read it to say it does not apply to documents written after 1999.

I read it to be nothing more than a feel good statement based on the MAY. No teeth to it as in MUST.

I say you can amend your declaration with the written approval of 51% or more of your owners.

Of course I may well not know what I am talking about.......LOL

KerryL1 (California)
Posts: 14,550

Posted:

Since it does not say "shall," and since your docs are post 2006 and are NOT silent on the 51%, IMO, the other posters are correct.

Many of us would be thrilled if it only took 51% to amend our CC&Rs! Do you find that troubling, CfD?

CfD (Virginia)
Posts: 265

Posted:

No, I'm not disappointed kerry. But surprised. I paid a very good hoa lawyer for guidance and was told 2/3 because the property act was more restrictive. Our board is not sure and wants another opinion. Looking like my hoa lawyer is steering me wrong.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By CfD on 11/19/2015 1:44 PM
Thanks for the response Larry. It is my understanding that an associations documents can be more restrictive than state statutes, but not less restrictive. In my view 51% is far less restrictive than 2/3, so I would think we would need 2/3 to amend.

Am I misinterpreting your response?

You are not misinterpreting my response but I would like to know the source of your belief that you cannot be less restrictive than this statute, especially since the statute is permissive ("may") rather than mandatory ("must").

CfD (Virginia)
Posts: 265

Posted:

Inman and Strickler, Tarley Robinson, and other lawyers have explained this to me. Was told even though our docs are not silent, they are less restrictive than the state statutes.

TimB4 (Tennessee)
Posts: 21,061

Posted:

Cf,

The section of VA law you cites is § 55-515.1.

Expecting that the Developer is no longer in the picture, per the statute cited, there is a conflict between your CC&Rs and the statute. Since the statute does not defer control to your CC&Rs (as they were recorded after 1999), the statute must be complied with.

If the vote has not happened, I would urge you to urge the Board to seek a legal opinion about this conflict.

IMPORTANT If the vote has happened, the clock is ticking and, per that same statute, you only have 1 year to challenge the amendment (which is done through the courts). Remember to watch the clock and don't allow the Associations attorney to string you along until the clock runs out.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Now I am confused. If I understand correctly, you already have consulted several attorneys who have told you that your amendment needs approval from 2/3 of the owners but you began this thread by asking if you needed only 51%.

Did any of those attorneys provide you with a written opinion that cited the relevant provisions in your CC&R's, the statutes, and applicable case law? Reviewing all that takes a lot of time and generates a sizable invoice for services rendered. My experience is that attorneys who provide advice off-the-cuff without research are worthless.

Here is one example: In my association we have hundreds of miles of roads that we maintain. One of our first boards asked our attorney if the roads were public. The attorney correctly understood that the roads were all built on easements along the boundaries of each of our parcels. His conclusion was that they were private roads because the roads did not belong to any governmental agencies. Good answer, but wrong. Several years earlier the same issue had been answered by the state supreme court, who ruled that based upon the language that dedicated the easements that the roads were public. Had the lawyer gotten off his lazy butt and done some research he would have found the correct answer.

RichardP13 (California)
Posts: 3,868

Posted:

CfD

I would get a second or third opinion. I believe some here are reading the language incorrectly, IMHO.

I went online and found 51% was correct in your state under your specific circumstance. But, have a lawyer give you that information.

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By TimB4 on 11/19/2015 7:45 PM
Cf,

The section of VA law you cites is § 55-515.1.

Expecting that the Developer is no longer in the picture, per the statute cited, there is a conflict between your CC&Rs and the statute. Since the statute does not defer control to your CC&Rs (as they were recorded after 1999), the statute must be complied with.

If the vote has not happened, I would urge you to urge the Board to seek a legal opinion about this conflict.

IMPORTANT If the vote has happened, the clock is ticking and, per that same statute, you only have 1 year to challenge the amendment (which is done through the courts). Remember to watch the clock and don't allow the Associations attorney to string you along until the clock runs out.

So, if the CCRs of an association in Virginia state that during the first twenty years the Declaration may be amended with 90% approval and 75% thereafter, the number is now reduced to 2/3?

TimB4 (Tennessee)
Posts: 21,061

Posted:

Quote:

Posted By RichardP13 on 11/19/2015 8:15:48 PM

I went online and found 51% was correct in your state under your specific circumstance. But, have a lawyer give you that information.

Richard,

I disagree with your interpretation. This is the reason why:

The statute was amended in 1999 to include this section about what is needed to amend the CC&Rs.

The first sentence is very clear, an amendment requires 2/3 approval.

Combining that sentence with the provisions of VA § 55-508 (also part of the act), it's clear that this percentage requirement is applicable to all Associations who recorded CC&Rs in the State of VA.

However, the legislators (well, perhaps the lobbyists) realized that this could create a conflict with Associations who recorded their CC&Rs prior to 1999. Hence they were very clear (well for VA legislatures) in the second sentence of that section of statute "This subsection may be applied to an association subject to a declaration recorded prior to July 1, 1999 . . ." that due to such a conflict they defer control for amending Declarations recorded prior to 1999 back to the Declaration. They further expand how this deferred control can be reclaimed ("if the declaration is silent on how it may be amended or upon the amendment of that declaration in accordance with its requirements").

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By TimB4 on 11/19/2015 8:28 PM

Posted By RichardP13 on 11/19/2015 8:15:48 PM

I went online and found 51% was correct in your state under your specific circumstance. But, have a lawyer give you that information.

Richard,

I disagree with your interpretation. This is the reason why:

The statute was amended in 1999 to include this section about what is needed to amend the CC&Rs.

The first sentence is very clear, an amendment requires 2/3 approval.

Combining that sentence with the provisions of VA § 55-508 (also part of the act), it's clear that this percentage requirement is applicable to all Associations who recorded CC&Rs in the State of VA.

However, the legislators (well, perhaps the lobbyists) realized that this could create a conflict with Associations who recorded their CC&Rs prior to 1999. Hence they were very clear (well for VA legislatures) in the second sentence of that section of statute "This subsection may be applied to an association subject to a declaration recorded prior to July 1, 1999 . . ." that due to such a conflict they defer control for amending Declarations recorded prior to 1999 back to the Declaration. They further expand how this deferred control can be reclaimed ("if the declaration is silent on how it may be amended or upon the amendment of that declaration in accordance with its requirements").

Then you are saying all CCRs in Virginia can only be amended by 2/3% of the membership?

TimB4 (Tennessee)
Posts: 21,061

Posted:

Quote:

Posted By RichardP13 on 11/19/2015 8:40 PM

Then you are saying all CCRs in Virginia can only be amended by 2/3% of the membership?

No.

I am saying that, according to the Statute, all CC&Rs recorded after July 1, 1999 can only be amended by 2/3 of the membership

CC&Rs recorded prior to July 1, 1999 are to be amended in accordance with that document unless that document is silent. If silent, per the statute, then it would require 2/3 of the membership.

Cf's Declaration was recorded in 2006. Hence, his Declaration is subject to the 2/3 requirement outlined in the statute.

Of course, I am not an attorney and this should not be considered legal advice or a valid legal opinion. Anyone who takes action based on this opinion agrees to hold me harmless for any consequences as a result of taking those actions.

CfD (Virginia)
Posts: 265

Posted:

I see where the statute can be interpreted both ways. Yes, I've received multiple legal opinions pertaining to this, but I'm the one paying, not the association. My attorney believes it is 2/3 because the statute is more restrictive than our governing docs. I'm the chairman of the Declaration revision committee, and we recommended 2/3 to the board. But I can understand why our board would want to pay the association's attorney for an opinion, and in my view whatever that attorney comes back with is what they should go with.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By TimB4 on 11/19/2015 8:28 PM

The first sentence is very clear, an amendment requires 2/3 approval.

The first sentence is anything but clear as it says "may." It does not prohibit amendments approved by a lower percentage set forth in the CC&R's.

It's analogous to a speed limit. Your speedometer may go up to 120 mph. The state says you may not exceed 70 mph no matter how high your speedometer goes, but that does not mean you cannot drive slower than 70. So you "may" drive 70 but you do not have to.

CfD (Virginia)
Posts: 265

Posted:

Larry, if the statute said: A Declaration "shall" or "must" be amended by a 2/3 vote, wouldn't it override all Declarations, even those with a higher percentage requirement as some associations apparently have, and regardless of when any Declaration was recorded.

I don't think that is the intent of this statute.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By CfD on 11/20/2015 11:30 AM
Larry, if the statute said: A Declaration "shall" or "must" be amended by a 2/3 vote, wouldn't it override all Declarations, even those with a higher percentage requirement as some associations apparently have, and regardless of when any Declaration was recorded.

I don't think that is the intent of this statute.

I agree. I do not think it was the intent to force all declarations to be amended by 2/3 of the owners. I think the intent was to create an upper limit of 2/3 while allowing lower percentages to remain in effect.

If I were in charge of your amendment process I would record the amendments as soon as I had 51% approval and sit back and wait for someone to challenge it. If I understand correctly, there is a one-year statute of limitations on challenges to an amendment in VA. It would be up to the challenger to prove that 51% was not valid and the chances for his success are anything but a slam-dunk.

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By TimB4 on 11/19/2015 8:28 PM

Posted By RichardP13 on 11/19/2015 8:15:48 PM

I went online and found 51% was correct in your state under your specific circumstance. But, have a lawyer give you that information.

Richard,

I disagree with your interpretation. This is the reason why:

The statute was amended in 1999 to include this section about what is needed to amend the CC&Rs.

The first sentence is very clear, an amendment requires 2/3 approval.

Combining that sentence with the provisions of VA § 55-508 (also part of the act), it's clear that this percentage requirement is applicable to all Associations who recorded CC&Rs in the State of VA.

However, the legislators (well, perhaps the lobbyists) realized that this could create a conflict with Associations who recorded their CC&Rs prior to 1999. Hence they were very clear (well for VA legislatures) in the second sentence of that section of statute "This subsection may be applied to an association subject to a declaration recorded prior to July 1, 1999 . . ." that due to such a conflict they defer control for amending Declarations recorded prior to 1999 back to the Declaration. They further expand how this deferred control can be reclaimed ("if the declaration is silent on how it may be amended or upon the amendment of that declaration in accordance with its requirements").

From VA § 55-508, it clearly states "This chapter shall not be construed to affect the validity of any provision of any prior declaration; however, to the extent the declaration is silent, the provisions of this chapter shall apply.

It is clear that all they were doing is setting a percentage, where the CCRs had none. Nowhere do it say it requires a 2/3%, it only says may.

TimB4 (Tennessee)
Posts: 21,061

Posted:

Quote:

Posted By RichardP13 on 11/20/2015 1:36 PM

From VA § 55-508, it clearly states "This chapter shall not be construed to affect the validity of any provision of any prior declaration; however, to the extent the declaration is silent, the provisions of this chapter shall apply.

It is clear that all they were doing is setting a percentage, where the CCRs had none. Nowhere do it say it requires a 2/3%, it only says may.

Richard, you missed the one key word in that citation prior.

If you read the paragraph before the one you cited from you will see that it states:
"This chapter shall not be construed to affect the validity of any provision of any declaration recorded prior to July 1, 1998"

The act was created in 1998 and replaced a previous act. Due to conflicts between this act and the previous act, this act (per my citation) defers control to Declarations recorded prior to 1998 under the previous act. The third paragraph (which Richard quoted from) is addressing how this Act reclaims control if those CC&Rs are silent.

You need to take the entire section into context as well as just the one paragraph.

Quote:

Posted By LarryB13 on 11/20/2015 11:16 AM

Posted By TimB4 on 11/19/2015 8:28 PM

The first sentence is very clear, an amendment requires 2/3 approval.

The first sentence is anything but clear as it says "may." It does not prohibit amendments approved by a lower percentage set forth in the CC&R's.

It's analogous to a speed limit. Your speedometer may go up to 120 mph. The state says you may not exceed 70 mph no matter how high your speedometer goes, but that does not mean you cannot drive slower than 70. So you "may" drive 70 but you do not have to.

Larry,

I respectfully disagree. The use of the word "may" in this context (as I read it) is indicating that Association has a choice to amend or not amend their CC&Rs. However, if they choose to amend the CC&Rs, then (for those CC&Rs recorded prior to July 1, 1999) 2/3 membership vote is required.

TimB4 (Tennessee)
Posts: 21,061

Posted:

From the history of the bill that created that section:

Provides that a declaration may be amended by agreement of owners of two-thirds of the lots subject to that declaration. The bill also authorizes an association created before July 1, 1999, to “opt-in” to the two-thirds amendment provision created under this bill, provided the “opt-in” is accomplished in accordance with the declaration. The bill also provides (i) that an action to challenge the validity of an amendment may not be brought more than one year after the amendment is effective and (ii) when an amendment is effective.

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By TimB4 on 11/20/2015 3:12 PM
From the history of the bill that created that section:

Provides that a declaration may be amended by agreement of owners of two-thirds of the lots subject to that declaration. The bill also authorizes an association created before July 1, 1999, to “opt-in” to the two-thirds amendment provision created under this bill, provided the “opt-in” is accomplished in accordance with the declaration. The bill also provides (i) that an action to challenge the validity of an amendment may not be brought more than one year after the amendment is effective and (ii) when an amendment is effective.

And they say California is screwed up.

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By TimB4 on 11/20/2015 2:55 PM

Posted By RichardP13 on 11/20/2015 1:36 PM

From VA § 55-508, it clearly states "This chapter shall not be construed to affect the validity of any provision of any prior declaration; however, to the extent the declaration is silent, the provisions of this chapter shall apply.

It is clear that all they were doing is setting a percentage, where the CCRs had none. Nowhere do it say it requires a 2/3%, it only says may.

Richard, you missed the one key word in that citation prior.

If you read the paragraph before the one you cited from you will see that it states:
"This chapter shall not be construed to affect the validity of any provision of any declaration recorded prior to July 1, 1998"

The act was created in 1998 and replaced a previous act. Due to conflicts between this act and the previous act, this act (per my citation) defers control to Declarations recorded prior to 1998 under the previous act. The third paragraph (which Richard quoted from) is addressing how this Act reclaims control if those CC&Rs are silent.

You need to take the entire section into context as well as just the one paragraph.

Quote:

Posted By LarryB13 on 11/20/2015 11:16 AM

Posted By TimB4 on 11/19/2015 8:28 PM

The first sentence is very clear, an amendment requires 2/3 approval.

The first sentence is anything but clear as it says "may." It does not prohibit amendments approved by a lower percentage set forth in the CC&R's.

It's analogous to a speed limit. Your speedometer may go up to 120 mph. The state says you may not exceed 70 mph no matter how high your speedometer goes, but that does not mean you cannot drive slower than 70. So you "may" drive 70 but you do not have to.

Larry,

I respectfully disagree. The use of the word "may" in this context (as I read it) is indicating that Association has a choice to amend or not amend their CC&Rs. However, if they choose to amend the CC&Rs, then (for those CC&Rs recorded prior to July 1, 1999) 2/3 membership vote is required.

Tim

I respectfully disagree. That is not what subsection D says in regards to "prior to July 1, 1999". It says "IF" the Declaration is SILENT. If their CCRs prior to 1999 and recorded prior to July 1, 1999 were amended to change the percentage to 10%, then 10% it is. They were not silent.

TimB4 (Tennessee)
Posts: 21,061

Posted:

Quote:

Posted By TimB4 on 11/19/2015 9:06 PM

CC&Rs recorded prior to July 1, 1999 are to be amended in accordance with that document unless that document is silent. If silent, per the statute, then it would require 2/3 of the membership.

Quote:

Posted By RichardP13 on 11/20/2015 3:30 PM

I respectfully disagree. That is not what subsection D says in regards to "prior to July 1, 1999". It says "IF" the Declaration is SILENT. If their CCRs prior to 1999 and recorded prior to July 1, 1999 were amended to change the percentage to 10%, then 10% it is. They were not silent.

Richard, we are now saying the same thing.

We agree that CC&Rs recorded prior to 7/1/1999 that are silent on how to amend re1uire the 2/3 agreement of members.

We agree that C&Rs recorded prior to 7/1/1999 that are not silent must follow what the procedure is in their CC&Rs to amend.

We disagree that CC&Rs recorded on or after 7/1/1999 require a 2/3 agreement of members to amend (regardless of what their documents may or may not specify as what is required).

Going back to the original issue, Cf's CC&Rs were recorded after 7/1/1999 (2006). You have advised him to obtain a legal opinion. Prior to posting, Cf did get legal opinions. Those legal opinions said that 2/3 agreement was required.

RichardP13 (California)
Posts: 3,868

Posted:

I don't believe it's being read in the right context. the heading is "Amendment to declaration and bylaws; consent of mortgagee." There is no mention, that I can see, that references bylaws. I believe there is something elsewhere that deals with this.

Even as bad as California is purported to be, at least, in our case, if the declaration is silent, it falls to a majority of members to approve.

TimB4 (Tennessee)
Posts: 21,061

Posted:

Quote:

Posted By RichardP13 on 11/20/2015 3:59 PM
I don't believe it's being read in the right context. the heading is "Amendment to declaration and bylaws

It's referenced in the first paragraph under the consent of mortgagee.

Other then that one section, Bylaws are not mentioned.