IMPROPER AMENDMENT VOTE

Our newly elected Board of Trustees have found that there was improper voting on a new amendment. There are not enough ballots and proper proxy votes to validate that 2/3rds of the association passed it. Does this make the amendment null and void?

Some States, I do not know about Ohio, have a statute of limitations for challenging amendments. If one exists, it is typically one year. If there is no limitation, then not having the proper numbers would have a court rule in favor of the challenger.

Keep in mind, if the Board isn't forthcoming about the issue, then a challenge will be required and sooner rather then later is best.

If you do nothing, the County will consider the amendment legal (as that is what somebody probably swore to when it was filed). Unless someone who has a reason to suspect the amendment is not legal and challenges it, reality is, that it will likely stand.

However, the proper thing would be for the Association to withdraw it.

Expecting that the filing wasn't malicious, if the Association chose to go after the individual who built the deck, that individual, who acted in good faith, would likely win damages (i.e. the cost to remove the deck and restore the outside wall). Those damages would be paid by the Association.

You are in a catch 22.

If the Association does nothing, someone may challenge the amendment in court.
If the Association chooses to rescind the filed document, they will then have to decide if they want to enforce or not.

If they choose to enforce, then the individual will likely sue for damages and would have a good case. Potentially resulted in legal fees and the cost to remove the deck and restore the exterior wall paid by the Association.

If they choose not to enforce on the one individual and enforce on others, they face legal action for selective enforcement or having that covenant overturned for lack of enforcement.

However, another option would be to canvas owners and get enough signatures to make the amendment legal.

My personal opinion, the Association Board needs to check with an attorney and keep their mouths shut until they receive legal advice. Of course, if you are not on the board, then the info is already out which means the Board may have other issues.

We aren't against the amendment, just worried about down the road problems. I have found proxies where the appointed proxy holder is the same as the proxy giver. The reason for turning in a proxy is because you can't attend the meeting and are giving someone else who will be there the power to vote for you, right?

We also seem to be missing a lot of documents and information from what the previous Board turned over to us. Wondering what legal problems might occur because of that.

And, they won't give us the email account password. All homeowner's use this email address to contact the Board with issues, whatever.

We are trying make contact with the Association's attorney but he hasn't responded (two messages left with his office). Therefore, I'm just trying to figure out some of this myself. We will most likely be getting a new lawyer sooner than later.

Listen to Augie, good advice there.

It sounds like the president of the HOA pushed through a invalid vote because he wanted a deck. The board should immediately put out a notice that the covenant change is being reviewed and ask that no other construction occur until after the the ruling. The go talk to an HOA attorney. This needs a nipping in the bud!

We took a vote last year and it was announced that the vote passed. I, as president, had reservations of the validity of the vote. Myself and the secretary went to an attorney and we had to reverse the results. In our case, no construction had occurred. We did remind the membership that the changes to the covenant are not legal until filed with the county, and we told everyone not act on the results of the vote.

Exactly......

https://www.hoamemberservices.com/product/hold-harmless-and-indemnity-agreement/

HOA Approval of Owner Modifications Should Require a Recordable Indemnification Agreement
by Lawrence Szabo, Esq. | Oct 19, 2017
Homeowners associations are frequently requested to approve modifications that are desired by owners of separate interests within the association. The approval of modifications is generally a function of the association’s architectural review committee and/or the board of directors. State laws and/or governing documents (generally the CC&Rs) typically contain provisions that provide for the granting of approval subject to conditions. Thus, before even considering an owner’s request for a modification, the people who are responsible for evaluating the request need to be familiar with and understand what their state laws and association’s governing documents require relative to such requests.
When it comes to considering requests for modifications, those vested with the decision making authority frequently mistakenly believe that their concern in reviewing owner applications for modifications is limited to modifications that impact the exterior appearance of the particular owner’s separate interest. Because desired owner modifications to the interior of their unit could have substantial consequences to other owners (i.e. the installation of hardwood floors in an upper level unit) and some desired interior modifications have the potential of causing damage to structural elements that are part of the association’s common area (i.e. damage to the roof caused by the installation of a skylight), or to common area mechanical systems (i.e. damage to water supply pipes), it is equally important to properly evaluate such requests.
Whether they are dealing with a condominium unit, an individual residence, a lot, or exclusive use common area, association directors and architectural review committee members must exercise their decision making authority relative to applications for modifications in a way that will protect the future financial integrity of the association, without regard to their relationship to the person(s) who submitted the application. One way of protecting against the risk of future association expenses that result from the modifications made by owners is to require an agreement from the requesting owner for that owner to be financially responsible for the modification(s) in the future as a condition of approving the requested modification. Such agreements are commonly referred to as a “hold harmless” or “indemnity” agreement.
A hold harmless or indemnity agreement is a written recordable document that “runs with the land,” in which the owner(s) who is/are requesting approval for modifications, agree on behalf of the current owner(s) and his or her successors in interest, to be financially responsible for all property damage that may be caused by the modifications. Such agreements also commonly include provisions that require insurance and the proper maintenance, repair and/or replacement of the improvement as necessary. An indemnification agreement must contain the legal description of the separate interest, must be signed by each owner of the separate interest, and their signatures must be notarized in order to be able to record the document. A sample “Hold Harmless and Indemnity Agreement” may be accessed below.
When dealing with a request for modifications, it is also extremely important for those people who act on behalf of a homeowners association in evaluating and making decisions on the request to be aware of limitations on their actions that are imposed by state and federal laws relative to modifications (commonly referred to as “accommodations”) that are requested by, or on behalf of, a disabled person. When the requested approval is predicated on a claim of disability, the right to condition approval on indemnification, insurance, and repair may be limited. For a better understanding of the issues and limitations when evaluating requests that are based on a claim of disability, see Joint Statement of the Department of Housing and Urban Development and the Department of Justice, Joint Stmt re Reasonable Modification Under the Fair Housing Act_.