Voting and Amendment Question

Our HOA is still managed by the developer and has not been transitioned to the owners yet.

At our last HOA meeting, there was a motion to amend the Declaration of Covenants. I question the validity of said amendment due to voting and motions being conducted correctly.

The Declaration states the following:

This Declaration can be amended at any time provided that a majority of the votes
cast at a duly called meeting of the Association Vote in favor of the proposed amendment.
If any proposed amendment to this Declaration is approved by the members as set forth
above, the President and Secretary of the Association shall execute an amendment to this
Declaration which shall set forth the amendment, the effective date of the amendment
which in no event shal1 be less than thirty (30) days after the date of recording of the
amendment, the date of the meeting of the Association at which such amendment was
adopted, the date of that notice of such meeting was given), total number of votes of
members of the Association, the total number of votes required to constitute a quorum of
the meeting of the Association, the number of votes required to adopt an amendment, the
total number of votes cast against the amendment. The amendment shall be Recorded in
the official real estate records of XXXXXX (redacted). The Developer may
unilaterally amend this Declaration without the consent or approval of the Association, or
other Owners, for a period of twenty-four (24) months from the date of recording of this
Declaration so long as Developer owns any Lot and so long as such Developer
amendment does not materially alter the obligations of the Developer or increase the
assessment liability of the Owners provided for this declaration. Any such Developer
amendment shall be applicable to any and to all Owners whether purchasing prior to such
amendment or subsequent thereof.

I read this initially that with any Duly called meeting, only a majority vote in favor of the amendment is needed of only those that showed up for the meeting. ---SEE FIRST LINE---

However, if you read a little further down, it does say the President and Secretary shall set forth the number of votes etc. and also the NUMBER OF VOTES TO CONSTITUTE A QUORUM. Does that mean that the quorum is decided at each meeting since it does not specifically say that the quorum is greater then 50% of the owners entirely and at the top it states the majority of votes at a duly called meeting.

Thoughts?

How settings should be run and what is required at Association Meetings of the members often is found in the bylaws. It might say that a quorum for members voting is 25%. So it looks like quorum must be reached first, and then a simple majority of it at a meeting would approve the amendment.

And then, Roger points that just a majority of a quorum can amend the CC&Rs, is really loose-- ours, for instance requires 67% of all units and that's pretty typical.

It could b that you & others may want to chip in for a HOA attorney to untangle your verbiage..

Oh, say, if you're incorporated, GA corporations code may hold answers for you.

There is nothing else in the "Declaration of Covenants, Easements and Restrictions for XXXX Subdivision" which addresses parties in attendance or number of votes to meet quorum.

I see someone mention Bylaws...is that another term synonymous for the document mentioned above or could there be further documentation that we are not aware of?

I have been to the county deeds office and this is what they have on file (document mentioned above).

Tom

It is typical that a Quorum must be established to do business and this Quorum amount can vary widely with the ones I have see as low as 10% and as high as 50%. That aside most docs call for a % of all owners to modify Covenants and or Bylaw. Note the % of all owners which does not mean just the % when a Quorum is established. As an example:

100 units, 50% Quorum required so let us say 52 unit owners show thus a Quorum is established. Typicall the docs will call for 80% of all owners to modify a Covenants. This means 805 of the 100, not 80% of the 52 that showed up.

Our doces call for 2/3rds of all owners to approve any Covenant/Bylaw change (75 of 113). Recently when we changed our Quorum requirement from 50% to 20% (23 of 113), many thought the change meant we only needed 2/3rd of the 20% (or 16 of the 23) to change a Covenant/Bylaw. It took a lot of explaining on our part that this was not the case. That Quorum change aside, we still need 2/3rds of all owners (75 of 113) to change a Covenant/Bylaw. It passed but some still do not understand it.

In many jurisdictions the bylaws don't need to be recorded with the county, you might need to get them from the developer.

You mentioned in your first post that the association was under developer control. That would suggest to me that the developer could control enough votes to both constitute a quorum and pass an amendment without any other votes.

I would look to see if the quorum requirement for holding an association meeting (members meeting?) is specified elsewhere in the document. If there is, then the rest looks like a pro forma recitation of the number of owners, the number needed to form a quorum, the number actually present at the meeting, the number of votes needed to pass the amendment, etc.

Our requirements to amend our documents are kind of "loose" as well. With a quorum requirement of 30% and only a simple majority of votes from those present at a meeting with a quorum, it's possible for 16 owners to approve amendments affecting all 100 homes. Owner apathy over the years gradually reduced the percent of owner approval needed to amend from 75% to 67% to 50% (of total voting interests) and finally to "50% plus 1" of those in attendance at a meeting with a quorum.

Notice requirements to the owners and the need for board approval of proposed amendments seems to be enough to prevent any really wacky amendments. While it's possible for as few as 16 owners to approve amendments, I think it would be hard for a determined group of 16 to actually scheme and plot to get an evil amendment passed. Apathy is high but it's not absolute.

There are approx. 65 lots with 15 of them still being owned by the developer. Why do you say that the Developer would still have 15 votes? Based on the info below from our CC&R, I see that each member only gets 1 vote:

SECTION 1. Membership
Every Owner of a Lot or Dwelling Unit (including Developer) shall be a member of the
Association. Membership shall be automatic and shall be appurtenant to and may not be
separated from ownership of any Dwelling Unit.
·
SECTION 2. VOTING
The Association shall have one class of voting membership. Each Member shall have one
vote.

One way to look at it is that the developer is a member 16 times. It would be highly unusual to not allow one vote per lot.

Hope Douglas' wording helps, Tom. Another way to think about this is that the owner of, say, 6 lots pays 6 x the dues of the others. We have, in fact, had owners write here a few times complaining that they own 6 lots; why should they pay 6 X the dues. Well, they potentially use 6 X the amenities, etc.

Yes, Tom the bylaws usually are a separate document from the declaration (C&Rs, Covenants; Restrictions) Most states don't require them to be recorded. I've read on this forum a couple of times where the Declaration and Bylaws are part of larger document, but they still are separate. Your HOA also might have its own articles of incorporation. Check with neighbors, your property mgr. is you have one. otherwise write to the registered agent of your HOA requesting a copy.

The thing is, if your HOA is not incorporated, you'll have neither bylaws nor Articles.

I hear ya John. And I am sure it is true. However, if the CC&R is precluding him from paying, I don't even understand how he is a voting member.

This is quite common.