Unpopular Amendment coming soon. HOA is less than 50 years old. What percentage is needed now, and please explain Instrument (procedure)

Started by DonaldM7 • 15 replies • 1732 views

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DonaldM7 (Florida)
Posts: 20

Posted:

ARTICLE 17

17. Amendments. The covenants, conditions, reservations and restrictions of this Declaration may be amended from time to time, but during the first fifty (5O) years may be amended only by an instrument signed by not less than ninety (90%) percent of the Dwelling Unit Owners, and thereafter, provided this Declaration shall continue to have legal and equitable effect, only by an instrument signed by not less than seventy-five percent (75%) of the Dwelling Unit Owners, provided, however, that until the Developer has completed all of the contemplated improvements and closed the sales of all Dwelling Units within the Development no amendment(s) to this Declaration shall be effective, unless joined by the Developer. It is further provided that in order to be effective any amendment to this Declaration must be recorded amongst the Public Records of Palm Beach County, Florida.

17.1 Notwithstanding anything herein to the contrary, the Declarant (Developer) reserves the right to alter and amend this Declaration, as it deems necessary and/or appropriate for the protection and enhancement of the Development, and the Developer shall not require or need the joinder of any Dwelling Unit Owners, prior to such time as the Developer conveys the last Dwelling Unit of the Development or elects to terminate its control over the Association, whichever shall first occur.

17.2 No amendment shall discriminate against any Dwelling Unit Owner or against any Dwelling Unit, ot class or group of Dwelling Units, unless the Dwelling Unit Owners so affected and their institutional mortgagees shall consent; and no amendment may change the percentage by which the Dwelling Unit owner shares the Common Expenses and owns the Common Surplus, unless the Dwelling Unit Owner and all record owners of liens on it join in the execution of the amendment. No amendment shall make any change in Sections 8.6 and 10.5 hereof or adversely effect an
Institutional Lender unless the record owner of all institutiont mortgages upon all Dwelling qnits shall join in the execution of such amendment.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Donald,

How old is the CC&Rs (vs. how old is the HOA)?
What I mean to say is when were the CC&Rs initially recorded with the County (typically while the Declarant was in control)

I expect that the Declarant is no longer in the picture or, at least, has turned control of the Association over to the members.

Based on what you provided,

If it has been 50 years or less since the Document were first recorded with the County, then you would need 90% of the lots to agree.

If it has been more then 50 years (i.e. 50 years and one day) then you only need 75% of the lots to agree.

Agreement may be made by vote at a meeting or, as indicated, by having each lot owner sign that they agree to the amendment.

If the vote was done at a meeting, the Board typically swears on an affidavit that the vote occurred and the required number of lots voted in favor.

If done by signing a document, the Board can take years until they have enough signatures. Once the correct amount of signatures is obtained, then the Board simply has to file the document.

NOTE: The citation you provided was specific, 90% or 75% of the owners. Therefore, that number will not change regardless of how many lots may have had voting privileges suspended.

Example: 100 lots, 90% agreement = 90 yea votes required.
100 lots, 90% agreement required, 10 lots had voting suspended = 90 yea votes required.

DonaldM7 (Florida)
Posts: 20

Posted:

Thanks for reply

CC&Rs Date 12/24/1987

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By DonaldM7 on 05/14/2016 6:20 AM
Thanks for reply

CC&Rs Date 12/24/1987

Is that the date of the initial filing or the date of a prior amendment?

DonaldM7 (Florida)
Posts: 20

Posted:

THIS DECLARATION OF COVENANTS AND RESTRICTIONS AND PARTY FACILITIES made this 24th day of December, 1987

That is the date on all our copies the owners have.

DonaldM7 (Florida)
Posts: 20

Posted:

I found this date in the County web site under sub division FILED 1-7-91

DonaldM7 (Florida)
Posts: 20

Posted:

Anyone know how to search Palm Beach County records for date of CCR's.
Been trying for an hour.

DonaldM7 (Florida)
Posts: 20

Posted:

I did find there were some small ammendments in 91

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By TimB4 on 05/14/2016 5:50 AM
Donald,
Agreement may be made by vote at a meeting or, as indicated, by having each lot owner sign that they agree to the amendment.

If the vote was done at a meeting, the Board typically swears on an affidavit that the vote occurred and the required number of lots voted in favor.

If done by signing a document, the Board can take years until they have enough signatures. Once the correct amount of signatures is obtained, then the Board simply has to file the document.

NOTE: The citation you provided was specific, 90% or 75% of the owners. Therefore, that number will not change regardless of how many lots may have had voting privileges suspended.

Example: 100 lots, 90% agreement = 90 yea votes required.
100 lots, 90% agreement required, 10 lots had voting suspended = 90 yea votes required.

I see nothing in the portion of the CC&R's quoted that provides for either a member vote or participation by the board of directors. What is your source for those conclusions?

"An instrument" is a document setting forth the proposed amendment and providing places for members to approve by signing. (Signature = "yes;" No signature = "No.") The instrument may be a single sheet of paper signed by all owners or multiple sheets signed by one or more owners. There is no time limit for gathering signatures from owners.

Typically, anyone may initiate the process by circulating an instrument and they do not need either the board's approval or participation. The person who circulates such an instrument would be wise to record it himself when he has sufficient signatures.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By LarryB13 on 05/14/2016 1:00 PM

I see nothing in the portion of the CC&R's quoted that provides for either a member vote or participation by the board of directors. What is your source for those conclusions?

Sorry, I was in a rush.

Once I started typing, I started to think about my Association.

I stand corrected.

As Larry points out, it must be a signed instrument and not a vote.

PitA
Posts: 1,416

Posted:

the 'fly in the ointment':

time wise, when the signatures are tallied, need they be from owners at the time of tally ?

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By PitA on 05/15/2016 5:03 AM
the 'fly in the ointment':

time wise, when the signatures are tallied, need they be from owners at the time of tally ?

This question arose within my association and the consensus seemed to be that to be valid, the signature must be that of the owner(s) at the time the amendment is recorded. So the downside of taking forever to collect signatures is that some properties will change hands, making the signatures of former owners no longer valid and requiring signatures from the new owners.

PitA
Posts: 1,416

Posted:

PitA
Posts: 1,416

Posted:

Original Poster;

How could an unpopular amendment pass ANY majority vote?

TimB4 (Tennessee)
Posts: 21,059

Posted:

It might only be unpopular with some vs. majority.

Only the collection of signatures (along with a campaign to get the word out on what the amendment will mean) will decide if the amendment has enough support or not.

KevinK7 (Florida)
Posts: 1,343

Posted:

How old is your neighborhood and what is the amendment?

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