changes to declaration of covenants

DorisB5 (Florida)
Posts: 13

Posted:

The board added five changes to our covenants and restrictions on the proxy sheet. Note on the proxy The proxyholder cannot vote on these for you. Next statement right below authorize and instruct my proxyholder to cast my vote in reference to the following matters indicated below. Can changes to the documents be put on proxy sheet.

DorisB5 (Florida)
Posts: 13

Posted:

can the board add changes to the covenants on the proxy sheet for the annual election.

DorisB5 (Florida)
Posts: 13

Posted:

Quote:

Posted By DorisB5 on 01/24/2016 8:13 AM
The board added five changes to our covenants and restrictions on the proxy sheet. Note on the proxy The proxyholder cannot vote on these for you. Next statement right below authorize and instruct my proxyholder to cast my vote in reference to the following matters indicated below. Can changes to the documents be put on proxy sheet.

can the board add changes to the documents on a proxy sheet for the annual meeting.

GenoS (Florida)
Posts: 4,276

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Quote:

Posted By SheliaH on 01/24/2016 9:46 AM
You should be asking your board these questions - what did they say? And check your documents - usually, appointed proxies vote in board elections at the annual meeting, but changes to the CCRs and bylaws have to be approved by the homeowner, so this one is probably correct in saying the proxy can't cast a vote in this regard. In my association, the homeowners have to sign documents that specifically address CCR changes (voting yes or no) and have it notarized, so I hope your board has consulted the association attorney to ensure this is permissible, otherwise those changes may not stand up in court if challenged.

The bylaws may say otherwise, but Florida Statutes ch. 720.306 doesn't require different treatment of proxy votes for amendments. A proxy can vote on amendments just the same as for any other vote. Special documents that have to be notarized in order to approve an amendment to the documents sounds excessive and I sort of doubt that arrangement is common.

DorisB5, if "The proxyholder cannot vote on these for you" appears on the proxy then you'll need to consult your bylaws and articles of incorporation to see if such a restriction is valid. Florida law does not restrict the matters to be voted on via proxy, but it does defer to the bylaws in large measure.

DorisB5 (Florida)
Posts: 13

Posted:

01/24/2016 9:49 PM Quote Reply
This happened Annual Board meeting 2015.I have talked to the board and was told me that they opened the proxies the day before the meeting, and counted them. Also asked if they had to keep the proxies like they do ballots. Answer was yes. I couldn't understand how they could count the proxies day before meeting, when the proxy had to be at the Annual Meeting to sign in. At the meeting when I went to vote, they made me fill out a proxy. They are adding changes to rules and also on documents on the proxy. We received our packet for voting on Feb. 19 and we have the same rules as before. They encourage you to send your proxy into the office as soon as possible. At sign in, what proof does the person that has your proxy have that he really has your proxy. ??????

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By DorisB5 on 01/24/2016 1:50 PM
This happened Annual Board meeting 2015.I have talked to the board and was told me that they opened the proxies the day before the meeting, and counted them. Also asked if they had to keep the proxies like they do ballots. Answer was yes. I couldn't understand how they could count the proxies day before meeting, when the proxy had to be at the Annual Meeting to sign in. At the meeting when I went to vote, they made me fill out a proxy. They are adding changes to rules and also on documents on the proxy. We received our packet for voting on Feb. 19 and we have the same rules as before. They encourage you to send your proxy into the office as soon as possible. At sign in, what proof does the person that has your proxy have that he really has your proxy. ??????

Proxies shouldn't be voted or counted until the meeting is called to order. I suppose a rough count of unopened envelopes that have been received in advance of the meeting could be used to get a rough estimate for quorum purposes, but they should not be opened before the meeting. Maybe your bylaws say otherwise? As with proxies, FS 720 (Florida's Homeowners Assoc Law) doesn't have a lot to say about election procedures. If your bylaws say it's OK to count proxies ahead of the annual meeting then it's perfectly fine for them to do so. (Your bylaws probably say no such thing, but YOU have to get them out and read them to make sure.)

You shouldn't have to fill out a proxy at the meeting when you appear in person. Typically one votes in-person or by proxy. It sounds like your board is very confused.

Keep in mind there are 2 kinds of proxies, general and directed. Both can be used as "votes" on any item of business requiring a vote. I think it's very important that you review your current bylaws. These things that are troubling you may be addressed in them.

What proof does someone have that they hold a valid proxy? The proxy itself along with the signature of the person who gave the proxy.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By DorisB5 on 01/24/2016 8:13 AM
The board added five changes to our covenants and restrictions on the proxy sheet. Note on the proxy The proxyholder cannot vote on these for you. Next statement right below authorize and instruct my proxyholder to cast my vote in reference to the following matters indicated below. Can changes to the documents be put on proxy sheet.

Changes to covenants and restrictions typically require a super-majority (usually 67%) vote of ALL the owners. If homeowners are not allowed to vote on these changes by proxy, that would mean that 67% of the unit owners must actually attend the meeting and vote in favor of the change at the meeting.

If you were not changing covenants and restrictions, a simple majority of those present would be enough.

Example:
Assume your community has 100 units. Assume also that you need 20% for a quorum. In an ordinary vote, you only need 20% (20 owners) to show up and only a majority (11 owners) to vote in favor of something.
But if you're voting on a change to your covenants and restrictions, quorums don't matter. You need 67% of ALL the owners (67) to show up and vote in favor of the changes. There's a huge difference between 11 and 67. And I think it's probably impossible for the change to be approved under those circumstances.

The only thing I can think of is - The board members are against the change - and they are trying to make it difficult for the vote to succeed.

Sikubali jukumu. Read all posts at your own risk.

GenoS (Florida)
Posts: 4,276

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Quote:

Posted By NpS on 01/24/2016 5:41 PM
Example:
Assume your community has 100 units. Assume also that you need 20% for a quorum. In an ordinary vote, you only need 20% (20 owners) to show up and only a majority (11 owners) to vote in favor of something.
But if you're voting on a change to your covenants and restrictions, quorums don't matter. You need 67% of ALL the owners (67) to show up and vote in favor of the changes. There's a huge difference between 11 and 67. And I think it's probably impossible for the change to be approved under those circumstances.

It all depends on the documents.

Another example:
My HOA only requires the majority approval of those voting in person or by proxy at a meeting at which quorum has been obtained. Our 100-home HOA quorum requirement is 30%. We could theoretically pass amendments to any of our documents with as little as 16 votes in favor (in person, via proxy, or mail-in ballots).

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By GenoS on 01/24/2016 8:04 PM

Posted By NpS on 01/24/2016 5:41 PM
Example:
Assume your community has 100 units. Assume also that you need 20% for a quorum. In an ordinary vote, you only need 20% (20 owners) to show up and only a majority (11 owners) to vote in favor of something.
But if you're voting on a change to your covenants and restrictions, quorums don't matter. You need 67% of ALL the owners (67) to show up and vote in favor of the changes. There's a huge difference between 11 and 67. And I think it's probably impossible for the change to be approved under those circumstances.

It all depends on the documents.

Another example:
My HOA only requires the majority approval of those voting in person or by proxy at a meeting at which quorum has been obtained. Our 100-home HOA quorum requirement is 30%. We could theoretically pass amendments to any of our documents with as little as 16 votes in favor (in person, via proxy, or mail-in ballots).

Geno. Your example is the same as mine. I was using a 20% quorum. You were using a 30% quorum. I get 11 and you get 16 by using different percentages.

But the issue raised by the OP is a change to "covenants and restrictions" that doesn't allow proxy voting. I say it would take 67 in-person votes for the CC&R change to pass. Do you agree or disagree?

Sikubali jukumu. Read all posts at your own risk.

GenoS (Florida)
Posts: 4,276

Posted:

My HOA's CCRs can be amended by a simple majority of voters at a meeting with quorum. That's nowhere near two-thirds of all voting interests. I am given to understand that amending the CCRs is generally subject to a higher bar of approval among the owners. My example was meant to show that that's not always the case. It depends on the documents' amendment provisions and what the docs say about proxy voting.

Doris hasn't given enough details from her HOA's documents to say anything about whether or not voting by proxy on amendments is allowed. I'm not aware of anything in Florida law that places restrictions on proxy voting per se. If the docs allow it, then so be it. If the docs prohibit it, then that's fine too.

NpS (Pennsylvania)
Posts: 4,216

Posted:

I'm very surprised Geno. I thought that every state required super-majority approval to make a change to the CC&Rs.

Since OP is in FL, I defer to your knowledge and experience.

Very strange state you live in.

Sikubali jukumu. Read all posts at your own risk.

GenoS (Florida)
Posts: 4,276

Posted:

FS 720.306(1)(b)

"Unless otherwise provided in the governing documents or required by law, and other than those matters set forth in paragraph (c), any governing document of an association may be amended by the affirmative vote of two-thirds of the voting interests of the association."

Immediately after turnover in '94 the number needed to amend the CCRs was "2/3 majority vote of the total membership," but that has been revised downward several times since. Most recently in 2011 the CCRs were amended to say:

"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."

I realize it's not typical but FL state law defers to the governing documents.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Last year we changed our Quorum required to conduct business at the Annual Meeting from 50% to 20%. As much as we explained that this change had nothing to do with any other voting % requirement in the Covenants/Bylaws some still believe we can change Covenants/Bylaws when only 20% attend the meeting. Some just do not understand anything no matter how much one explains things.

DorisB5 (Florida)
Posts: 13

Posted:

Our Documents 13.s Amendments by Members. Except as otherwise provided herein or by law, this Declaration may be amended at any time by the affirmative vote of two-thirds (2/3) of the total votes cast by members of the Association, voting in person or by proxy, at a duly called meeting of the members of the Association.

Our documents don't have any information with instructions about what can be added to the proxy.

Our by laws state: Members may cast their votes at a meeting in person or by proxy. A proxy shall be valid only for the specific meeting.etc. To be valid, valid, a proxy must be in writing, dated and signed by the person authorized to cast the vote for the residential Lot, and specify the date, time, and place of the meeting for which it is given and the original must be delivered to the Secretary of the Association by the appointed time of the meeting or adjournment thereof.

Question: l. The proxy holder must attend the meeting and sign in for the resident he is holding the proxy for.

Our documents state: A quorum at members meetings shall be attained by the presence, either in person or by
proxy, of persons entitled to cast a least twenty percent (20%) of the votes of the entire membership.

2. If the proxy holder doesn't attend the meeting and he turns in his proxy can this vote be counted for the
quorum. according to our By-Laws they do not count.

In our packet for the annual meeting it states
A ballot is to be completed by the voting member in accordance with the enclosed instructions and returned to the secretary of the Association. We are in a 55 retirement comm. and some of the people are returning their ballots and proxy as soon as they fill them out. shouldn't the board make clear that they or their proxy need to attend the annual meeting and sign in for these votes to count.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By DorisB5 on 01/25/2016 7:44 AM
Our Documents 13.s Amendments by Members. Except as otherwise provided herein or by law, this Declaration may be amended at any time by the affirmative vote of two-thirds (2/3) of the total votes cast by members of the Association, voting in person or by proxy, at a duly called meeting of the members of the Association.

Our documents don't have any information with instructions about what can be added to the proxy.

Our by laws state: Members may cast their votes at a meeting in person or by proxy. A proxy shall be valid only for the specific meeting.etc. To be valid, valid, a proxy must be in writing, dated and signed by the person authorized to cast the vote for the residential Lot, and specify the date, time, and place of the meeting for which it is given and the original must be delivered to the Secretary of the Association by the appointed time of the meeting or adjournment thereof.

Question: l. The proxy holder must attend the meeting and sign in for the resident he is holding the proxy for.

Our documents state: A quorum at members meetings shall be attained by the presence, either in person or by
proxy, of persons entitled to cast a least twenty percent (20%) of the votes of the entire membership.

2. If the proxy holder doesn't attend the meeting and he turns in his proxy can this vote be counted for the
quorum. according to our By-Laws they do not count.

In our packet for the annual meeting it states
A ballot is to be completed by the voting member in accordance with the enclosed instructions and returned to the secretary of the Association. We are in a 55 retirement comm. and some of the people are returning their ballots and proxy as soon as they fill them out. shouldn't the board make clear that they or their proxy need to attend the annual meeting and sign in for these votes to count.

Yes. The board should make clear that the named proxy-holder must attend the meeting. If not, the proxy cannot be counted.

Sikubali jukumu. Read all posts at your own risk.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

We were able to by-pass the "special meeting" requirement to cast our votes when changing our CC&R's. How we did it was simple. We had to sign another "Proxy sheet" that gave up our rights to cast our votes at a special meeting. By allowing us to give up our rights to attend a meeting to cast a vote, allowed us to go door to door to collect votes. It just meant no one had to attend a meeting to cast their vote and thus could sign the change "Proxy sheet" at the same time. That is what allowed us to gather votes for our changes in our HOA. Our lawyer drafted this document for us. Which was part of the process for our changes.

Former HOA President

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By DorisB5 on 01/25/2016 7:44 AM
Our Documents 13.s Amendments by Members. Except as otherwise provided herein or by law, this Declaration may be amended at any time by the affirmative vote of two-thirds (2/3) of the total votes cast by members of the Association, voting in person or by proxy, at a duly called meeting of the members of the Association.

Our documents don't have any information with instructions about what can be added to the proxy.

Our by laws state: Members may cast their votes at a meeting in person or by proxy. A proxy shall be valid only for the specific meeting.etc. To be valid, valid, a proxy must be in writing, dated and signed by the person authorized to cast the vote for the residential Lot, and specify the date, time, and place of the meeting for which it is given and the original must be delivered to the Secretary of the Association by the appointed time of the meeting or adjournment thereof.

Question: l. The proxy holder must attend the meeting and sign in for the resident he is holding the proxy for.

Our documents state: A quorum at members meetings shall be attained by the presence, either in person or by
proxy, of persons entitled to cast a least twenty percent (20%) of the votes of the entire membership.

2. If the proxy holder doesn't attend the meeting and he turns in his proxy can this vote be counted for the
quorum. according to our By-Laws they do not count.

In our packet for the annual meeting it states
A ballot is to be completed by the voting member in accordance with the enclosed instructions and returned to the secretary of the Association. We are in a 55 retirement comm. and some of the people are returning their ballots and proxy as soon as they fill them out. shouldn't the board make clear that they or their proxy need to attend the annual meeting and sign in for these votes to count.

Thanks for the additional details, Doris. In addition to naming a specific person to be your proxy holder, it's possible to appoint "the Secretary" as such. Our standard proxy form says in part, "the undersigned hereby appoints the Secretary of the Association or ____ agent with the power of..." etc. An owner who wishes to designate a specific person - one who must be at the meeting - can fill in the blank. Otherwise, by leaving it blank the Secretary is appointed. There's always going to be a Secretary at the meeting.