vote by proxy

Question - If a vote to amend CC&R's is done by proxy by mail, are the ones that do not turn in their proxy considered automatic no votes for the amendment or do they just not count them if they already have the required percentage to pass the amendment?

Andrea, I guess you aren't understanding the process. Some number of members of the Association that must vote yes in order for it to pass (let's say 2/3rds).

90% - 95% members are lazy and apathetic so they won't show up to a meeting and a good number won't bother even putting a check on a piece of paper, sign it and mail it back. But walking the neighborhood is not particularly efficient as it is slow and you will have to do it several times at different times of the day and different days of the week to hope to get those you missed during previous outings. For these reasons a mailing is done first and then typically several walk throughs to get those who have not yet mailed something back.

The vote is not taken at one instant in time but rather over a period of time.

JoeW1, Our HOA had a vote to amend its CC&R by a written mailed vote. We exceeded the necessary 2/3 Membership of YES votes to make the change. In fact, with the exception of one NO vote, all other returned votes were YES. However, we counted the unreturned votes automatically as NO votes. Both a 2/3 and a majority were reached in this vote.
For future reference, if the need arises again for a written ballot, should wording be included on the ballot that unreturned ballots are neither YES nor NO when counting towards the necessary 2/3?
Also as far as pecking order (I know that this was discussed before but I am reconfirming)..Federal, then State, then Local/county/city, then Plat's,...then CC&R, then Articles of Inc., then By-Laws, and lowly Rules & Regulations?
I am asking because in our By-Laws under VOTING, it states "Except as other provided in the Declaration, the Art. of Inc. or elsewhere in these By-Laws...the affirmative vote of the majority.." But in our CC&R under AMENDMENT, it states "agreement signed by at least 2/3 of the Members..."
The reason for clarifying the pecking order is on another Covenant change vote. The YES votes did not reach the 2/3 but did exceed the majority. We counted that vote down. All Members voted either in person or by proxy on this vote.
This is getting very confusing. I'd appreciate anyone's clarification.
Thanks.

Good Post..... Now maybe you all could help clarify some wording in our CC&R'S........... Ours states that a MAJORITY of the " THEN OWNERS " must agree to consent to change the Deed Restrictions..... We are being told that it is not a vote........Rather an agreement and the consent must be signed by the then owners..
So here's my question : When they refer to the MAJORITY OF THE THEN OWNERS..... I and others understand it to mean that it is a majority of ALL the RECORDED OWNERS of individual properties...... So lets just say we have 300 lots and each lot has 2 owners...........2 x 300 = 600 so the majority would be 300 to sign to agree...CORRECT ? Thanks for your time....LindaC

JudithC.......good point...however at our last meeting we were told that lets say if the lot has 5 owners..it would take all 5 owners to sign to consent,,( remember..we were told it is not a vote ) you couldnt have only 4 agree to change so that lot would not be in the count.....What I am trying to point out to our commitee is that based on how I understand the wording in our present declaration it means that lets say at the beginning of August 08 someone would have to go to the court house...review each deed - count how many " then owners" there are and then do the math and give us the majic number for the majority in order for the deeds to be approved and recorded......We do have a few lots where there are 10 owners because each adult kid has an interest in the property......... The reason I ask this is because back in 1998 they said they only needed 150 signatures....299 lots majority 150....this time around because a few of us have questioned the method they are saying something totally different........ We are confused........Thanks again Lindac

PaulM.............. We were told by the Attorney for the Association that this is not a vote......The one vote one lot does not apply for the " agreeing to consent " to change the Declarations....He said based on the wording about the majority of the "then owners" all owners MUST sign the agreement for this be valid and binding.....They said all owners are entitled to say in this matter...This whole thing came about because a bunch us did go back to the 1998 " vote" and did a recount ....all color coded and we had a list of the then owners supplied to us by the Property appraiser....We double checked proxies, power of attorneys and found that did not have the " required" amount of signatures to have changed the Deeds back then...We have chosen not to make an issue of the incorrect amount of signatures but did ask for clarification of how this event was to be handled....We do not want a repeat of mistakes....This round of deed changes is a big one as our community has changed dramatically with a lot more people moving here to live full time...so of course things that would never have been thought about to be in a deed restrition now must be added...you know how that goes...LindaC

JudithC..... I love the "do you trust " part.....4 of our BOD are lawyers !!!! I think we have caused the BOD and the Attorney to re examine this isssue with a few of us questioning this method of approval... We will be having our town hall meetings and will be recording them with permission of course and finally ask them to answer the question once and for all.....I mean I can understand the part of ALL OWNERS having a say in the process of agreeing to consent that the Deeds need to be changed, just confused as to why they keep telling us that it is not a vote, where the one lot one vote thing comes into play.....and of course it is not addressed in our By Laws...which unto itself is a whole new story.....Imagine having a meeting in 1979 and not recording the amendments to the By laws according to the by laws till MAY 2007...........Talk about the state of COMA......... They only recorded them because we are facing mediation from a homeowner who has VERY VALID concerns about the past operations of our HOA..... Well off to garden and put HOA stuff on the back burner on this gorgeous sunny rain free day in Florida...Thank you all for your replies........LindaC

JoeW, I have never seen CC&Rs which agree with your statement "Those that do not return a vote do not constitute a quorum of owners to hold a meeting nor do they get counted towards a percentage necessary to amend." To my knowledge every unit (lot) counts towards the 2/3 requirement needed to approve amending the CC&Rs. Those who do not vote can be listed as abstaining. The only talley which is meaningful is for those units (lots) whose owner of record votes to approve an amendment; whether it takes 2/3 approval of each unit (lot) or some other percentage for approval.

OK so now I am even more confused, someone please clarify for me the following and what this mean in relation to my original post above.

In our CC&R's it reads: "Amendment. Except as otherwise specifically provided in this declaration, this declaration may be amended only by the affirmative or written consent, or any combination thereof, of owners of not less than 75% of the total number of units within the properties and the consent of the declarant, so long as the declarant has an option to subject additional property to this declaration pursuant to section 7.1; provided, however, Declarant may, at Declarant's option amend or modify this declaration wihtout obtaining the consent or approval of any other Owner if such amendment or modification is correctional in nature only. in addition, the approval requirements set forth in section 13.4 shall be met, if applicable."

Section 13.4 only pertains to if the declarant is still in control, which they are not. However they still hold approx 35 votes for properties that are still being completed. We are 437 homes total including the declarants properties. So the question is would the BOD need to have 75% (328 affirmative votes) to pass the proposed amendment to the CCR's on the proxy? Or am I reading this incorrectly, please advise. I am confused. Or does it not matter if all 75% are for or against as long as the response was had from the 328 to either change or not?

A thought for you guys.

There is another vote other than yes or no, it is called abstain. Depending on the wording of your documents for the specific issue it might count against you or not at all. If you need majority approval it is the on the same side as 'No' as it is has not granted approval. If you need majority of the vote it is on neither side and so reduces the voting pool.