Proxy vote to amend rules and regulations - FL

Started by AlexC1 • 20 replies • 3303 views

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AlexC1 (Florida)
Posts: 13

Posted:

Our HOA in central Florida requested home owners to vote, by proxy or in person at a BOD'd meeting, to allow the BOD to amend the rules and regulations so that white vinyl fences (in addition to the current natural wood fences) would be allowed. Our bylaws stipulate a 2/3 majority vote of all homeowners is required to amend the bylaws. The BOD said results of the vote shows 45 over 32 in favor of amending rules and regulation so the white vinyl fence is allowed. I still think 2/3 of homeowners (approx 142) must vote 'yes'. Who is correct ?

I thank you in advance for any insight.

RickR3 (California)
Posts: 42

Posted:

2/3 of all homeowners (you stated 142) is 94. This rule change does not pass.

Rick
HOA President.

DavidR5
Posts: 99

Posted:

Rules and Regulations are not necessarily bylaws. The BOARD shouldn't need a unit owner vote to change a Rule.

BradP (Kansas)
Posts: 2,640

Posted:

Alex:

As you wrote the rule on here I would say yes that 2/3 of 142 homeowners need to approve. However, are you sure it is all homeowners or is it stated that 2/3 of those in attendance at the meeting? Our amendment changes only require 2/3 of those who are in attendance to approve.

BradP (Kansas)
Posts: 2,640

Posted:

David:

If it says in your CC&R's that wood fences are the only type of fence that is allowed then yes you would need a unit owner vote to approve white vinyl. Our documents state only wood and wrought iron are allowed. The Board can't make that decision on its own, I guess they can, but it legally can't.

DavidR5
Posts: 99

Posted:

ok, well I'll say it again. In our docs, "Rules and Regulations" are at the discretion of the BOD. Bylaws require a 2/3 vote. Is it possible that the BOD just wanted to see if a majority agreed before they changed the rule? I'm in FL so I assume our docs are similar. Make sure you distinguish between bylaws and Rules; as they are not the same thing.

It should be easy enough to write your PM and ask why only a majority was required.

RogerB (Colorado)
Posts: 5,067

Posted:

Alex, first comment is I find it unusual that your By-laws require 2/3 of all homeowners to amend the By-laws. Check carefully to see if it takes 2/3 of ALL OWNERS to amend the Declaration of CC&Rs and it takes 2/3 of the MEMBERS VOTING to change the By-laws.

Furthermore the vote was not to amend the By-laws nor the Declaration; according to you it was only to amend the Rules and Regulations. This can usually be done by the Board without members voting or if a members vote is required it is approve by a majority (or possibly 2/3) of members voting. So I think your board is correct.

DavidR5
Posts: 99

Posted:

Quote:

Posted By RogerB on 07/25/2007 2:46 PM
Alex, first comment is I find it unusual that your By-laws require 2/3 of all homeowners to amend the By-laws. Check carefully to see if it takes 2/3 of ALL OWNERS to amend the Declaration of CC&Rs and it takes 2/3 of the MEMBERS VOTING to change the By-laws.

Furthermore the vote was not to amend the By-laws nor the Declaration; according to you it was only to amend the Rules and Regulations. This can usually be done by the Board without members voting or if a members vote is required it is approve by a majority (or possibly 2/3) of members voting. So I think your board is correct.

Thats what I said (twice)!

LindaC3 (Florida)
Posts: 526

Posted:

Alex....I live in an HOA in Florida and it could be that you are confusing By laws and your Deed Restrictions. Our By Laws require a 2/3 vote of approval of all Members and AMENDMENTS to our Deed Restrictions require a 2/3 vote of approval of all Members, however on our 10th anniversary of our Deed Restrictions it takes a MAJORITY of all the Owners to consent to change them. Our By Laws gives our BOD the right to promulgate such reasonable rules that govern use and restrictions of the common land and private residential lots.
As I would understand it a type of "fencing" would be a requirement of your deed restrictions and not your By Laws. Maybe you should check to see which document you are actually reading..Also check the "wording" as to who they are referring to as to the vote..owner or voting member.....LindaC

AlexC1 (Florida)
Posts: 13

Posted:

First, I'd like to thank all who responded. But now I'm more confused about which document the 'rules and regulations' refer to. There are 2 types of documents in the HOA; the Bylaws and the covenants (CC&R) and while both mention voting requirements to amend its document - there is a difference. Bylaws require "by a vote of a majority of the owners", and covenants require a 2/3 vote for each class of owners. The wording on the limited proxy mailed to home owners states YES or NO to "authorize the Board of Directors to amend the rules and Regulations to allow for the installation of white vinyl fences". What was not spelled out however, is that there is a cost associated with amending either the Bylaws or Covenants. Could 'Rules and Regulations' refer to both these documents ? I can't tell who authored the proxy - the BOD or the CAM.

Alex

LindaC3 (Florida)
Posts: 526

Posted:

Alex I have posted the following for you to read...Seems you are confused as to 'authored" the proxy....I would HIGHLY SUGGEST you also go read all of 720 and be informed and also contact your CAM and ask whatever questions that you are confused by...... In my HOA I would be raising 'cane" about my BOD changing fencing by a rule when indeed that issue is addressed in our Deed Restrictions..... BE AWARE and INFORMED....Best of Luck LindaC...........PS and YES there is a cost to "amend" any document especially one that needs to be recorded...Think of the $$$ your HOA has already spent just mailing out proxy forms........

FLORIDA STATE STATUE 720.306

8) PROXY VOTING.--The members have the right, unless otherwise provided in this subsection or in the governing documents, to vote in person or by proxy. To be valid, a proxy must be dated, must state the date, time, and place of the meeting for which it was given, and must be signed by the authorized person who executed the proxy. A proxy is effective only for the specific meeting for which it was originally given, as the meeting may lawfully be adjourned and reconvened from time to time, and automatically expires 90 days after the date of the meeting for which it was originally given. A proxy is revocable at any time at the pleasure of the person who executes it. If the proxy form expressly so provides, any proxy holder may appoint, in writing, a substitute to act in his or her place.

RogerB (Colorado)
Posts: 5,067

Posted:

Alex, read your Declaration; it authorizes creation of Rules and Regulations. As I stated in my last post there are 3 types of documents; the the Declaration, By-laws, and the third is Rules and Regulations.

JoeW1 (New York)
Posts: 728

Posted:

Quote:

Posted By AlexC1 on 07/25/2007 6:59 PM
First, I'd like to thank all who responded. But now I'm more confused about which document the 'rules and regulations' refer to. There are 2 types of documents in the HOA; the Bylaws and the covenants (CC&R) and while both mention voting requirements to amend its document - there is a difference. Bylaws require "by a vote of a majority of the owners", and covenants require a 2/3 vote for each class of owners. The wording on the limited proxy mailed to home owners states YES or NO to "authorize the Board of Directors to amend the rules and Regulations to allow for the installation of white vinyl fences". What was not spelled out however, is that there is a cost associated with amending either the Bylaws or Covenants. Could 'Rules and Regulations' refer to both these documents ? I can't tell who authored the proxy - the BOD or the CAM.

Alex

AlexC1 - The vote is to "authorize" the BOD to amend, not to actually amend the cc&r. The BOD may choose not to amend. Though I doubt it. IMHO I would not grant them the power if they don't already have it. Sets a precedent over something that may be considered minor, like a white fence. IMHO, unless a group of residents petitioned the BOD or voiced their concern under New Business at an Open Meeting that was duly called with adequate notice and an agenda of a New Business portion, perhaps with the white fence topic, published in a conspicuous place to revise the cc&r's to permit white fences the whole thing is innapropriate. Some may comment that in my scenario, nothing would get done. Quite frankly, none of the baloney would get done, but all the other stuff may get focused and acted upon on a Board level.

I still don't think you have 2/3rds of the class of owners. 45 over 32 in favor makes 77 owners in person or proxy. 45 of 77 is 58%, or a majority of those in person or proxy. However, it's not 2/3 of 77, nor does 45 in favor equal 2/3rds of your homeowners, right?

DavidR5
Posts: 99

Posted:

I think that your BOD has done the right thing, and you should appreciate that. In FL, Rules and Regulation are set by the BOD. They don't have to get authorization, but it appears that instead of simply doing whatever they want to do, they've asked the unit owners. This is the way a BOD should be conducted.

By laws are a more serious matter, because changing that permenantly changes the "law" of the Association. Rules can be changed from Board to Board. IMO getting majority approval to change a Rule is something that should be encouraged, even if it doesn't turn out the way you wanted. Its democracy at work.

JoeW1 (New York)
Posts: 728

Posted:

DavidR5 - See, here's what I take an issue. It's one thing to survey the owners, quite another to send out a ballot by mail (vote/proxy) without precedent. As an example of what I believe the proper methodology is to put the matter titled "Board seeks authorization to amend the cc&r to include white vinyl fences" on an agenda for an open meeting, advertise the request in the Assoc. newsletter (if there is one), and publish the agenda in a conspicuous (prominent) location in the community. Keep it as new and then old business until you drum up enough support to justify a ballot by mail or receive the input of the owners. Unfortunately what is right is not always popular, what is popular is not always right. It's reasonable and probably right to expand the fencing, especially because the owners choices are being expanded. However, it may not be a power vested with the Board and therefor popular opinion is the place to begin. In Associations, the democratic process if ballots by mail, etc. need to be driven by more than the autocrats.

DavidR5
Posts: 99

Posted:

I'm really not sure what you're unhappy with here, Joe. It seems that they did more than they had to do. Its not practical to treat every small item like a major issue. There's a lot of business to do.

JoeW1 (New York)
Posts: 728

Posted:

Quote:

Posted By DavidR5 on 07/26/2007 6:11 AM
I'm really not sure what you're unhappy with here, Joe. It seems that they did more than they had to do. Its not practical to treat every small item like a major issue. There's a lot of business to do.

Not unhappy. Just a stickler for the source, percentage, and procedure to initiate change.

AlexC1 (Florida)
Posts: 13

Posted:

Thanks for your reply Roger. I checked the Declaration and it does allow amendments (to the document, ie, Declaration) with 2/3 voting interest approval. Our By laws have a similar stipulation but with the majority of the voting interest. Our 3rd document is called the 'Covenants Conditions and Restrictions' and it too stipulates amendments can be approved by a 2/3 voting interest.
Ironically, this document (CC&R) also refers to "Rules and Regulations as adapted by the association" as if it were a separate entity. So I need to talk with the Board of directors about this.

And thanks also to Linda. I will do whatever I can to become better informed and thus more aware of what the board does.

I thank everyone for your response. I am learning a lot about HOAs and its 'regulations'.

Alex

RogerB (Colorado)
Posts: 5,067

Posted:

Quote:

Posted By JoeW1 on 07/26/2007 5:55 AM
I believe the proper methodology is ...

Joe, you are welcome to your opinion but you are involved in the decisions which the Board is authorized to make. They chose to get input from members which was not required. Why aren't you praising them rather than being critical?

JoeW1 (New York)
Posts: 728

Posted:

Quote:

Posted By RogerB on 07/26/2007 8:29 AM

Posted By JoeW1 on 07/26/2007 5:55 AM
I believe the proper methodology is ...

RogerB - You just don't get my philosophy regarding the source for requesting change. Not to mention that my philosophy was expressed in response to what AlexC1 wrote, "Our bylaws stipulate a 2/3 majority vote of all homeowners is required to amend the bylaws.".

It is next to impossible to reason someone out of something that he did not reason himself into in the first place. Therefore, it will be difficult for you to grasp my philosophy about the source for requesting a change. AlexC1's BOD needs 2/3rds to approve. If this is actually the way it's written and there is no provision in the Bylaws that really I only need to stop right there.

However, the BOD is also seeking a vote of owners to allow the BOD to amend the rules and regulations. Granted it's for a white vinyl fence. But once the BOD is granted the authority to amend the first time, the BOD will be in a fine position to use that success to justify other amendments. In other words, a precedent will be set.

Did AlexC1's community get 2/3rds of the owners to amend? Did AlexC1's community get 2/3rds of those 77 that attended the vote by person or proxy to allow the BOD to amend the rules and regulations?

45 over 32 in favor makes 77 owners in person or proxy. 45 of 77 is 58%, or a majority of those in person or proxy. However, it's not 2/3 of 77, nor does 45 in favor equal 2/3rds of AlexC1's homeowners, right?

Doesn't seem the BOD got the necessary percentage. So why did AlexC1's BOD say the white vinyl fence is allowed?

DavidR5
Posts: 99

Posted:

And you continue to not "get" that bylaws and Rules are completely different things.

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