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Number of ballots needed

Started by RichardP13 • 16 replies • 1156 views

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RichardP13 (California)
Posts: 3,868
Posted:
An mastication is looking to amend their Bylaws, Per the current amendment requirement, the number needed to amend is a majority of one third of the voting power. There are 317 homes. How many ballots need to be returned and then how many ballots are needed to amend to approve?

Thanks
LarryB13 (Arizona)
Posts: 4,099
Posted:
Richard,

I assume you meant "an association" before your auto-correct kicked in. If I recall correctly, mastication is the act of eating or chewing.

Assuming that each home has a single vote, one-third of the votes would be 105.66, which rounds up to 106. A majority would be 53 votes. I see no mention as to the number of votes required for a quorum and that would seem unnecessary; you either have at least 53 "yes" votes or the measure fails, regardless of the number of ballots cast.

RichardP13 (California)
Posts: 3,868
Posted:
I think I was eating when posting.

There is no quorum requirement.

Would it be necessary first to get at least 106 ballots, or just make sure you have 53 yes votes?
LarryB13 (Arizona)
Posts: 4,099
Posted:
Since I saw no quorum requirement my interpretation was that it takes a minimum of 53 "ayes" to pass.

But what happens if every member casts a ballot with 53 in favor and 264 opposed? Under the current bylaws the measure would pass even though the very idea that 83% of the votes would be ignored is offensive to parlimentarians everywhere.

May I suggest that the very first amendment to the bylaws is to revise the amendment process to include a quorum and approval by a majority of the quorum?

JohnC46 (South Carolina)
Posts: 14,265
Posted:
Interesting point by Larry.

Are the docs saying that 1/3rd voting is the minimum needed to have a vote? My first blush it that what they are saying. While the word quorum is not mentioned it is kind of like saying the 1/3 is required to make a quorum.

I also think if more than 1/3rd voted, it would still take a majority to pass it.
JeffT2 (Iowa)
Posts: 880
Posted:
Quote:
Posted By RichardP13 on 04/06/2017 9:52 PM
I think I was eating when posting.

There is no quorum requirement.

Would it be necessary first to get at least 106 ballots, or just make sure you have 53 yes votes?

Some thoughts:

If the bylaws are silent, then check the Articles of Incorporation for voting procedures (such as quorum).

The davis stirling and nonprofit laws have voting procedures and quorum provisions for approval of amendments by membership.

From CA nonprofit law:

5512. (a) One-third of the voting power, represented in person or
by proxy, shall constitute a quorum at a meeting of members, but,
subject to subdivisions (b) and (c), a bylaw may set a different
quorum.

So your phrase “one third of the voting power” can be interpreted as a quorum, and/or to comply with the nonprofit law (if it applies here) means that you do need to get at least 106 ballots.
RichardP13 (California)
Posts: 3,868
Posted:
Quorum was eliminated in 2010 for everything except for amending the Articles, CCRs and Special Assessments. The elections, removal and amending the Bylaws no longer require a quorum.

A law firm placed the following language in the Bylaws:

Section 9.5 - Amendments. These Bylaws may be amended by the vote or assent by written ballot of not less than a majority of one-third of the Voting Power of the Association. Any amendment shall become effective immediately upon approval by the Members. The Secretary of the Association shall certify adoption of any duly approved amendment to the Bylaws and copy of said certificate and the amendment shall be kept with the other records and books of the Association.

They also have an opinion from the same law firm stating that 106 ballots must first be returned and then a majority of those needed to amend.

In researching, I think Larry might have a point whereas you could have a majority vote no, yet as long as 53 voted yes, it passes.

TimB4 (Tennessee)
Posts: 21,059
Posted:
Quote:
Posted By RichardP13 on 04/06/2017 6:44 PM
An mastication is looking to amend their Bylaws, Per the current amendment requirement, the number needed to amend is a majority of one third of the voting power. There are 317 homes. How many ballots need to be returned and then how many ballots are needed to amend to approve?

Thanks

This can be looked at two ways.

A) One can say that the voting power is 317 (expecting 1 vote per lot).

OR

B) Since voting privileges can be suspended, the voting power would not be 317 but 317 (max number of votes) minus the number of votes suspended.

When I read such language, I interpret the meaning to be B.

So, if everyone is allowed to vote, you need a minimum of 53 votes to adopt.

Since there is no quorum requirement in your documents, state statutes would apply.
Based on what has been provided (I have not looked myself), 106 ballots (1/3) would be needed to reach quorum (going with interpretation A)

RichardP13 (California)
Posts: 3,868
Posted:
Tim

I read the Bylaws to mean at least 53 to amend. In the history of the HOA voting rights have never been suspended. I don't read that you need at least 106 ballot returned. But, I just found an opinion from the law firm that wrote the new Bylaws stating that 106 ballots must be returned and that you then need a majority of those ballots to amend. It is written poorly, but believe it was dome intentionally.

The quorum requirement was eliminated and is so stated in the Bylaws. State statues only apply if governing documents are silent.
DouglasM6 (Arizona)
Posts: 724
Posted:
I read it as 53 ayes to ammend. However, should you have more than 1/3 enter ballots, you would need the majority of the ballots entered.

RichardP13 (California)
Posts: 3,868
Posted:
Quote:
Posted By DouglasM6 on 04/11/2017 10:56 AM
I read it as 53 ayes to ammend. However, should you have more than 1/3 enter ballots, you would need the majority of the ballots entered.


Actually legal opinion have stated that as long as 53 yes votes are secured, no amount of no votes could defeat the amendment.
KerryL1 (California)
Posts: 14,550
Posted:
I see as Douglas does. 53 ayes, minimum to pass. But still a majority of the votes would need to be ayes to pass the amendment.

Can you paste the attorney's opinion here, Richard?
RichardP13 (California)
Posts: 3,868
Posted:
Quote:
Posted By KerryL1 on 04/11/2017 12:42 PM
I see as Douglas does. 53 ayes, minimum to pass. But still a majority of the votes would need to be ayes to pass the amendment.

Can you paste the attorney's opinion here, Richard?

3) How many votes are needed to make the recall successful?
In order for a single director to be recalled, at least a majority of at least one-third (1/3) of the voting power of the Association must vote in favor of the recall. As you have 317 homes, at a minimum, 106 owners must vote and at least 54 of those votes must approve of the recall.
KerryL1 (California)
Posts: 14,550
Posted:
The attorney's opinion is pretty clear, Richard: At minimum 54 ayes, but a majority of all votes is still needed to pass the amendment.

I agree that the current Bylaw article is poorly written.
DouglasM6 (Arizona)
Posts: 724
Posted:
Quote:
Posted By RichardP13 on 04/11/2017 2:22 PM
Posted By KerryL1 on 04/11/2017 12:42 PM
I see as Douglas does. 53 ayes, minimum to pass. But still a majority of the votes would need to be ayes to pass the amendment.

Can you paste the attorney's opinion here, Richard?


3) How many votes are needed to make the recall successful?
In order for a single director to be recalled, at least a majority of at least one-third (1/3) of the voting power of the Association must vote in favor of the recall. As you have 317 homes, at a minimum, 106 owners must vote and at least 54 of those votes must approve of the recall.

I was slightly wrong. You MUST have 106 voting to attempt the recall. 106 is your quorum. You can't have the vote without that many people in attendance. If more than that show up to vote, it requires a majority of the votes.

if 200 vote you need 101 in favor. If 317 vote you need 159 in favor, etc.

RichardP13 (California)
Posts: 3,868
Posted:
Quote:
Posted By KerryL1 on 04/11/2017 3:16 PM
The attorney's opinion is pretty clear, Richard: At minimum 54 ayes, but a majority of all votes is still needed to pass the amendment.

I agree that the current Bylaw article is poorly written.

Exactly how is the majority of all votes justified? Passage is by a majority of 1/3, not a majority of all votes. I believe it was poorly written intentially to cause a issue down the road.
RichardP13 (California)
Posts: 3,868
Posted:
Below is from Davis-Stirling.com and it kind of sums up the situation they may face.

Poorly Worded Provisions. Some documents contain poorly worded provisions that produce unintended results if followed literally. For each example, assume a 100-unit association voting for a special assessment where quorum is a majority of members represented in person, proxy or ballot.

a. Approval by a "majority of a quorum" means that if 100 votes are cast with 26 in favor (a majority of a quorum) and 74 against, the measure passes.

b. Approval by a "majority of the votes cast" means that a meeting with 51 attendees where one member votes in favor and the other 50 abstain, the measure passes.

c. Approval by a "majority of members present and voting" gives the same erroneous results as b.

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