amending the CC&R's

JackP4 (California)
Posts: 20

Posted:

Our HOA security assoc board is trying to amend the the CC&R's. There has been nothing on the agenda or minutes talking about the change. What is the process? MUST the homeowners be involved? they are about to send the ballots out. none of them knows anything about the davis/sterling act. We are in CA

TimB4 (Tennessee)
Posts: 21,059

Posted:

Jack,

The requirements to amend should be found within the documents themselves. Typically it's a high percentage of owners (usually 2/3 or more).

The typical procedure would be simple:

Publish the proposed amendment to the membership
Hold a general membership meeting
Take a vote
If the amendment passes, have it recorded and publish the adopted amendment to all members.

Of course, the draft amendment should likely be reviewed by an attorney for comments and suggestions prior to proposing it to the membership. Otherwise you may adopt an amendment that might not be legally enforceable.

Here is a link to the davis-stirling site's webpage on amendments:

http://www.davis-stirling.com/MainIndex/GovDocsMenu/tabid/355/Default.aspx

Now, if you haven't gotten a draft together yet, one of the better ways to gain membership support is to let them have a say in making the amendment. We actually formed a committee of homeowners (no board members) to review and propose changes to the governing docs.

Once the committee made a recommendation the Board reviewed it and made changes as they saw were needed.

The draft amendments were then sent to the membership for review and comment at an informational meeting on the topic.

The Board then made changes based on those comments.

The revised draft then went to the attorney for review and comment.

The Board made changes based on the attorney's comments and created the proposed amendment.

This proposed amendment then went to the membership along with the notice of a meeting to adopt.

The Board then hit the pavement and began knocking on doors encouraging members to attend or assign a proxy so the any vote could meet the requirements to amend outlined within the governing docs.

RichardP13 (California)
Posts: 3,868

Posted:

Jack

Since one one has jumped in, I will. First question would be, are you a Condo, single family detached home or townhouse. If the answer is yes to one pof the three, then we can proceed.

Civil Code §5100 define what is required to done by secret ballot and amending or restating governing docs MUST be done by secret ballot. Ballot packages must be mailed 30 PRIOR to the date the Board has set to count the ballots. The ballot package MUST contain two envelopes, one inner and one outer, the ballot, ballot instructions, copy of the amendment language and/or all the CCRs if being completely restated.

Before the ballots can be sent out, the Board must have, in open session, voted to set a date and time, appoint inspector(s), and voted and recorded in the minutes that the election process is to take place. Therefore, it MUST of be on a posted agenda four days prior to the meeting where it was discussed and voted upon. Under NO circumstances can this have been done inn executive session or "in secret".

Not having set of your CCRs, I can't tell you the specific language that it requires for change. Generally to restate or amend requires the affirmative vote of 67% of the voting power of the association. It generally requires a quorum of 51% to even open the ballots.

People in the legal profession would classify amendments as rule changes and this then would require a 30 day comment period for the homeowners before going to the Board for a final vote.

To your question, must homeowners be involved? The makeup and politics of every association is different. I would encourage member participation, but that is just me.

Curious, just what are they trying to amend?

LarryB13 (Arizona)
Posts: 4,099

Posted:

Richard,

Your reply to Jack implies that the CC&R's may be amended by voting. Is this a requirement in CA or are other methods permissible, such as executing and recording an instrument signed by the required percentage of owners.

BTW, I am not a fan of secret ballots when it comes to amending CC&R's. This makes it way too easy for the board to monkey with the ballots. I want to see a signature on every document that favors an amendment.

JackP4 (California)
Posts: 20

Posted:

We are a single family hoa with a PRIVATE golf course around the homes. The board (5 out of 9 are in some way affiliated with the golf course) wants us to help pay for the upkeep of the PRIVATE golf course. Like I said there has been no discussion by the board with or without the homeowners. Nothing in the minutes. I talked to one board member that thinks this is wrong. the board member said that the ringleader, not the president says that this is what they should do and they do it. no discussion even in closed session. A long history of good ol boy system. I was even assaulted by the security guard because the board did not want me to come into the small board room.Now with social media the homeowners can communicate with each other and the sleeping giant has awoken.

KerryL1 (California)
Posts: 14,550

Posted:

Well, Jack, I may have read the other replies too quickly, but I didn't see that the Board had an open meeting to discuss & approve the amendment(s). In CA, such meetings are required by the Davis-Stirling Act. Go to the website that Tim provided and scroll the Main Index to Open Meeting Act.

So it sounds like the board or a majority of the Board made the decision behind closed doors.

It's after an open meeting on the topic that inspectors of election are appointed and the other steps occur that Richard outlined.

2nd, if this IS a change to the CC&Rs, it does need to be mailed our as Richard describes, i.e., ballots, 2 envelopes, etc.

It should say in your CC&Rs, probably bar the back--how they may be amended.

But it sounds like your HOA has far more problems than this proposed amendment. You need to rally others to recall some or all board members, or if an election is approaching and some of them must run for reelection, find good candidates to run against them.

(If it ONLY is a rule change the board can propose it, send it out for a 30-day comment period, and then decide at a subsequent open meeting. But I take your word for it that its a proposed CC&R change.)

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By LarryB13 on 01/31/2016 11:39 AM
Richard,

Your reply to Jack implies that the CC&R's may be amended by voting. Is this a requirement in CA or are other methods permissible, such as executing and recording an instrument signed by the required percentage of owners.

BTW, I am not a fan of secret ballots when it comes to amending CC&R's. This makes it way too easy for the board to monkey with the ballots. I want to see a signature on every document that favors an amendment.

Actually, they MUST be voted on by secret ballot per California statues.

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By JackP4 on 01/31/2016 11:42 AM
We are a single family hoa with a PRIVATE golf course around the homes. The board (5 out of 9 are in some way affiliated with the golf course) wants us to help pay for the upkeep of the PRIVATE golf course. Like I said there has been no discussion by the board with or without the homeowners. Nothing in the minutes. I talked to one board member that thinks this is wrong. the board member said that the ringleader, not the president says that this is what they should do and they do it. no discussion even in closed session. A long history of good ol boy system. I was even assaulted by the security guard because the board did not want me to come into the small board room.Now with social media the homeowners can communicate with each other and the sleeping giant has awoken.

If taken to small claims, gets throw out in a heart beat.

IMO, do expect shady result. Prepare for the worst.

GenoS (Florida)
Posts: 4,276

Posted:

How are the 5 affiliated with the golf course? Do they own it? Are they partners in it? Do they have an interest in the Pro Shop? Or do they just like to play golf there and are maybe friendly with the owner?

It does sound like they are willing to breach their fiduciary duty by putting their own interests ahead of the community as a whole. And they're willing to violate D-S and quite possibly your own governing documents to do it. Their scheme to enrich the owner of a private golf course - and probably themselves - at the expense of the association's homeowners sounds more than shady.

NinaR (Florida)
Posts: 26

Posted:

All HOA members have access to board meeting, and you can ask to see all minutes and agendas. If they can't get them or don't have them handy they are in violation of the law. You have the right as an HOA member.
You need 2/3 of the vote to recall any or all board members. Read your CC&R and your State statues to find out exactly how all of this works in CA. The Statutes will also have info on amendments to your docs.
I urge you to dig your heels in on this. It sounds like there may be some corruption going on.

JackP4 (California)
Posts: 20

Posted:

Quote:

Posted By NinaR on 02/01/2016 7:14 AM
All HOA members have access to board meeting, and you can ask to see all minutes and agendas. If they can't get them or don't have them handy they are in violation of the law. You have the right as an HOA member.
You need 2/3 of the vote to recall any or all board members. Read your CC&R and your State statues to find out exactly how all of this works in CA. The Statutes will also have info on amendments to your docs.
I urge you to dig your heels in on this. It sounds like there may be some corruption going on.

they have been challenged before and won after doing nothing. this time is different. Social media and money to hire an attorney. We thought that SHOWING them that they are breaking the law, they would change their mind. We have started the recall.

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By NinaR on 02/01/2016 7:14 AM
All HOA members have access to board meeting, and you can ask to see all minutes and agendas. If they can't get them or don't have them handy they are in violation of the law. You have the right as an HOA member.
You need 2/3 of the vote to recall any or all board members. Read your CC&R and your State statues to find out exactly how all of this works in CA. The Statutes will also have info on amendments to your docs.
I urge you to dig your heels in on this. It sounds like there may be some corruption going on.

Exactly WHERE do you get your information?

JackP4 (California)
Posts: 20

Posted:

Quote:

Posted By RichardP13 on 02/01/2016 8:45 AM

Posted By NinaR on 02/01/2016 7:14 AM
All HOA members have access to board meeting, and you can ask to see all minutes and agendas. If they can't get them or don't have them handy they are in violation of the law. You have the right as an HOA member.
You need 2/3 of the vote to recall any or all board members. Read your CC&R and your State statues to find out exactly how all of this works in CA. The Statutes will also have info on amendments to your docs.
I urge you to dig your heels in on this. It sounds like there may be some corruption going on.

Exactly WHERE do you get your information?

Sounds like you are on our BOD, I screwed up and mentioned where I am. You just have to look at our CC&R's, bylaws, and minutes of the board. Ask me a specific question, I have nothing to hide. Information and votes are what count here.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By JackP4 on 02/01/2016 9:04 AM

Posted By RichardP13 on 02/01/2016 8:45 AM

Posted By NinaR on 02/01/2016 7:14 AM
All HOA members have access to board meeting, and you can ask to see all minutes and agendas. If they can't get them or don't have them handy they are in violation of the law. You have the right as an HOA member.
You need 2/3 of the vote to recall any or all board members. Read your CC&R and your State statues to find out exactly how all of this works in CA. The Statutes will also have info on amendments to your docs.
I urge you to dig your heels in on this. It sounds like there may be some corruption going on.

Exactly WHERE do you get your information?

Sounds like you are on our BOD, I screwed up and mentioned where I am. You just have to look at our CC&R's, bylaws, and minutes of the board. Ask me a specific question, I have nothing to hide. Information and votes are what count here.

I think Richard was asking Nina (quoted in the box), not you.

Sikubali jukumu. Read all posts at your own risk.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By JackP4 on 01/30/2016 5:43 PM

Our HOA security assoc board

Jack,

I have never heard of a HOA security Assassination.

Is this a separate entity within an HOA/COA?
What is the difference between a security Association and a typical HOA as most know them?

RichardP13 (California)
Posts: 3,868

Posted:

Tim

Many are called Maintenance Association. This one DOES exist.

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By NinaR on 02/01/2016 7:14 AM
You need 2/3 of the vote to recall any or all board members.

That's not true in Florida where FS 720.303 provides that a majority of the total voting interests is sufficient to recall a board member, regardless of what the governing documents say.