Amending our Declaration

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.

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.

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.

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.

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?

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?

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").

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.

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.

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").

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.

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.

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.

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.


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.

And they say California is screwed up.

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.

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

Other then that one section, Bylaws are not mentioned.