Use restrictions vs Covenant amendments

Anything in our covenants, including use restrictions, require 67% approval to amend. Most of our use restrictions, however (condo high rise), are in our Rules & Regulations. They also are one of our governing docs, but only require Board approval-after a 30-day Owner review period-- to amend. Such amendments, of course, may not conflict with the covenants.

Our HOA is 67% for a Covenant change unless the actual Covenant says other. I have seen Covenants with with multiple thresholds from as low as 51% to as high as 80%.

Bylaw changes call for 51%.

All ours are % of owners, not just % of those present.

Ours used to be that way. Oddly enough we've always made quorum at members meetings each and every time since 1994, but in 2008 and 2009 several proposed amendments failed to gather the necessary 2/3 approval of all homeowners. In 2010 we switched attorneys and they advised us to try and reduce the homeowner approval threshold for amendments. In 2011 2/3 of all homeowners did vote to further change the amendatory threshold of all our documents, except Rules & Regulations, to a simple majority of those members in attendance at a meeting with quorum.

So 30% would always show up at members meetings but we could never get 67% of all owners to vote in approval of amendments. Those proposed amendments in 2008 and 2009 both met with approval in the homeowner voting, i.e. more Yes votes than No votes, but there weren't ENOUGH Yes votes to meet the threshold. It was before my time but I'm still shocked that they got 2/3 of the homeowners to agree to reduce the thresholds.

It is potentially a low number, yes. Our 30% quorum requirement is exactly 30 owners and if the numbers broke right, a vote of 16 to 14 would be enough to approve an amendment to any of our documents. 16 out of 100 could effect great change binding on everyone. Of course, there was (and is) plenty of notice ahead of time where amendments are concerned and I think 16 people with an agenda to do something stupid would arouse enough opposition that such amendments would not pass.

On the other hand, after a few years here I have become functionally depressed when it comes to the governance of my HOA. There simply aren't enough owners who care enough to step up and work for positive change. We're self-managed and that's taking a toll. A management company would be doing work for us in some capacity. Absent that, it seems necessary for the board to step up its game and, along with robust committees and other volunteers, fill in the gaps where there's no MC to provide guidance or services. None of that is happening here. We're wrapping up another year of a board whose motto is, "Do as little as possible".

Our final board meeting of the year is next week. We have 2 carryover board members going into 2018 and 5 open seats to be filled in January. Our Bylaws say we need to have a minimum of 3 directors. Next week has been advertised as the last opportunity for anyone who might want to be on the board to step forward. So far no takers. Anyone we cajole into stepping forward will be doing it for all the wrong reasons.

Maybe the threshold of 51% of owners in attendance at a meeting with a quorum to approve amendments will be a blessing in disguise because significant changes are in the forseeable future here and the fewer the number of owners needed to approve those changes the better.

Colorado limits the percentage to amend any portion of the Declaration to 67% or less if the Declaration states a less percentage as long as any less percentage is more than 50%. However, if the CCR's state more than 67% then that would be null and void and become the 67% as noted by the State Statute. If you are an HOA or in essence single family homes the section states:

38-33.3-217. Amendment of declaration

(1) (a) (I) Except as otherwise provided in subparagraphs (II) and (III) of this paragraph (a), the declaration, including the plats and maps, may be amended only by the affirmative vote or agreement of unit owners of units to which more than fifty percent of the votes in the association are allocated or any larger percentage, not to exceed sixty-seven percent, that the declaration specifies. Any provision in the declaration that purports to specify a percentage larger than sixty-seven percent is hereby declared void as contrary to public policy, and until amended, such provision shall be deemed to specify a percentage of sixty-seven percent. The declaration may specify a smaller percentage than a simple majority only if all of the units are restricted exclusively to nonresidential use. Nothing in this paragraph (a) shall be construed to prohibit the association from seeking a court order, in accordance with subsection (7) of this section, to reduce the required percentage to less than sixty-seven percent.

(II) If the declaration provides for an initial period of applicability to be followed by automatic extension periods, the declaration may be amended at any time in accordance with subparagraph (I) of this paragraph (a).

(III) This paragraph (a) shall not apply:

(A) To the extent that its application is limited by subsection (4) of this section;

(B) To amendments executed by a declarant under section 38-33.3-205 (4) and (5), 38-33.3-208 (3), 38-33.3-209 (6), 38-33.3-210, or 38-33.3-222;

(C) To amendments executed by an association under section 38-33.3-107, 38-33.3-206 (4), 38-33.3-208 (2), 38-33.3-212, 38-33.3-213, or 38-33.3-218 (11) and (12);

(D) To amendments executed by the district court for any county that includes all or any portion of a common interest community under subsection (7) of this section; or

(E) To amendments that affect phased communities or declarant-controlled communities.

(b) (I) If the declaration requires first mortgagees to approve or consent to amendments, but does not set forth a procedure for registration or notification of first mortgagees, the association may:

(A) Send a dated, written notice and a copy of any proposed amendment by certified mail to each first mortgagee at its most recent address as shown on the recorded deed of trust or recorded assignment thereof; and

(B) Cause the dated notice, together with information on how to obtain a copy of the proposed amendment, to be printed in full at least twice, on separate occasions at least one week apart, in a newspaper of general circulation in the county in which the common interest community is located.

(II) A first mortgagee that does not deliver to the association a negative response within sixty days after the date of the notice specified in subparagraph (I) of this paragraph (b) shall be deemed to have approved the proposed amendment.

(III) The notification procedure set forth in this paragraph (b) is not mandatory. If the consent of first mortgagees is obtained without resort to this paragraph (b), and otherwise in accordance with the declaration, the notice to first mortgagees shall be considered sufficient.

(2) No action to challenge the validity of an amendment adopted by the association pursuant to this section may be brought more than one year after the amendment is recorded.

(3) Every amendment to the declaration must be recorded in every county in which any portion of the common interest community is located and is effective only upon recordation. An amendment must be indexed in the grantee's index in the name of the common interest community and the association and in the grantor's index in the name of each person executing the amendment.

(4) (a) Except to the extent expressly permitted or required by other provisions of this article, no amendment may create or increase special declarant rights, increase the number of units, or change the boundaries of any unit or the allocated interests of a unit in the absence of a vote or agreement of unit owners of units to which at least sixty-seven percent of the votes in the association, including sixty-seven percent of the votes allocated to units not owned by a declarant, are allocated or any larger percentage the declaration specifies. The declaration may specify a smaller percentage only if all of the units are restricted exclusively to nonresidential use.

(b) The sixty-seven-percent maximum percentage stated in paragraph (a) of subsection (1) of this section shall not apply to any common interest community in which one unit owner, by virtue of the declaration, bylaws, or other governing documents of the association, is allocated sixty-seven percent or more of the votes in the association.

(4.5) Except to the extent expressly permitted or required by other provisions of this article, no amendment may change the uses to which any unit is restricted in the absence of a vote or agreement of unit owners of units to which at least sixty-seven percent of the votes in the association are allocated or any larger percentage the declaration specifies. The declaration may specify a smaller percentage only if all of the units are restricted exclusively to nonresidential use.

(5) Amendments to the declaration required by this article to be recorded by the association shall be prepared, executed, recorded, and certified on behalf of the association by any officer of the association designated for that purpose or, in the absence of designation, by the president of the association.

(6) All expenses associated with preparing and recording an amendment to the declaration shall be the sole responsibility of:

(a) In the case of an amendment pursuant to sections 38-33.3-208 (2), 38-33.3-212, and 38-33.3-213, the unit owners desiring the amendment; and

(b) In the case of an amendment pursuant to section 38-33.3-208 (3), 38-33.3-209 (6), or 38-33.3-210, the declarant; and

(c) In all other cases, the association.

(7) (a) The association, acting through its executive board pursuant to section 38-33.3-303 (1), may petition the district court for any county that includes all or any portion of the common interest community for an order amending the declaration of the common interest community if:

(I) The association has twice sent notice of the proposed amendment to all unit owners that are entitled by the declaration to vote on the proposed amendment or are required for approval of the proposed amendment by any means allowed pursuant to the provisions regarding notice to members in sections 7-121-402 and 7-127-104, C.R.S., of the "Colorado Revised Nonprofit Corporation Act", articles 121 to 137 of title 7, C.R.S.;

(II) The association has discussed the proposed amendment during at least one meeting of the association; and

(III) Unit owners of units to which are allocated more than fifty percent of the number of consents, approvals, or votes of the association that would be required to adopt the proposed amendment pursuant to the declaration have voted in favor of the proposed amendment.

(b) A petition filed pursuant to paragraph (a) of this subsection (7) shall include:

(I) A summary of:

(A) The procedures and requirements for amending the declaration that are set forth in the declaration;

(B) The proposed amendment to the declaration;

(C) The effect of and reason for the proposed amendment, including a statement of the circumstances that make the amendment necessary or advisable;

(D) The results of any vote taken with respect to the proposed amendment; and

(E) Any other matters that the association believes will be useful to the court in deciding whether to grant the petition; and

(II) As exhibits, copies of:

(A) The declaration as originally recorded and any recorded amendments to the declaration;

(B) The text of the proposed amendment;

(C) Copies of any notices sent pursuant to subparagraph (I) of paragraph (a) of this subsection (7); and

(D) Any other documents that the association believes will be useful to the court in deciding whether to grant the petition.

(c) Within three days of the filing of the petition, the district court shall set a date for hearing the petition. Unless the court finds that an emergency requires an immediate hearing, the hearing shall be held no earlier than forty-five days and no later than sixty days after the date the association filed the petition.

(d) No later than ten days after the date for hearing a petition is set pursuant to paragraph (c) of this subsection (7), the association shall:

(I) Send notice of the petition by any written means allowed pursuant to the provisions regarding notice to members in sections 7-121-402 and 7-127-104, C.R.S., of the "Colorado Revised Nonprofit Corporation Act", articles 121 to 137 of title 7, C.R.S., to any unit owner, by first-class mail, postage prepaid or by hand delivery to any declarant, and by first-class mail, postage prepaid, to any lender that holds a security interest in one or more units and is entitled by the declaration or any underwriting guidelines or requirements of that lender or of the federal national mortgage association, the federal home loan mortgage corporation, the federal housing administration, the veterans administration, or the government national mortgage corporation to vote on the proposed amendment. The notice shall include:

(A) A copy of the petition which need not include the exhibits attached to the original petition filed with the district court;

(B) The date the district court will hear the petition; and

(C) A statement that the court may grant the petition and order the proposed amendment to the declaration unless any declarant entitled by the declaration to vote on the proposed amendment, the federal housing administration, the veterans administration, more than thirty-three percent of the unit owners entitled by the declaration to vote on the proposed amendment, or more than thirty-three percent of the lenders that hold a security interest in one or more units and are entitled by the declaration to vote on the proposed amendment file written objections to the proposed amendment with the court prior to the hearing;

(II) File with the district court:

(A) A list of the names and mailing addresses of declarants, unit owners, and lenders that hold a security interest in one or more units and that are entitled by the declaration to vote on the proposed amendment; and

(B) A copy of the notice required by subparagraph (I) of this paragraph (d).

(e) The district court shall grant the petition after hearing if it finds that:

(I) The association has complied with all requirements of this subsection (7);

(II) No more than thirty-three percent of the unit owners entitled by the declaration to vote on the proposed amendment have filed written objections to the proposed amendment with the court prior to the hearing;

(III) Neither the federal housing administration nor the veterans administration is entitled to approve the proposed amendment, or if so entitled has not filed written objections to the proposed amendment with the court prior to the hearing;

(IV) Either the proposed amendment does not eliminate any rights or privileges designated in the declaration as belonging to a declarant or no declarant has filed written objections to the proposed amendment with the court prior to the hearing;

(V) Either the proposed amendment does not eliminate any rights or privileges designated in the declaration as belonging to any lenders that hold security interests in one or more units and that are entitled by the declaration to vote on the proposed amendment or no more than thirty-three percent of such lenders have filed written objections to the proposed amendment with the court prior to the hearing; and

(VI) The proposed amendment would neither terminate the declaration nor change the allocated interests of the unit owners as specified in the declaration, except as allowed pursuant to section 38-33.3-315.

(f) Upon granting a petition, the court shall enter an order approving the proposed amendment and requiring the association to record the amendment in each county that includes all or any portion of the common interest community. Once recorded, the amendment shall have the same legal effect as if it were adopted pursuant to any requirements set forth in the declaration.

(1) (a) (I) Except as otherwise provided in subparagraphs (II) and (III) of this paragraph (a), the declaration, including the plats and maps, may be amended only by the affirmative vote or agreement of unit owners of units to which more than fifty percent of the votes in the association are allocated or any larger percentage, not to exceed sixty-seven percent, that the declaration specifies. Any provision in the declaration that purports to specify a percentage larger than sixty-seven percent is hereby declared void as contrary to public policy, and until amended, such provision shall be deemed to specify a percentage of sixty-seven percent. The declaration may specify a smaller percentage than a simple majority only if all of the units are restricted exclusively to nonresidential use. Nothing in this paragraph (a) shall be construed to prohibit the association from seeking a court order, in accordance with subsection (7) of this section, to reduce the required percentage to less than sixty-seven percent.

You cut and pasted the law. Please read what you posted:

(4.5) Except to the extent expressly permitted or required by other provisions of this article, no amendment may change the uses to which any unit is restricted in the absence of a vote or agreement of unit owners of units to which at least sixty-seven percent of the votes in the association are allocated or any larger percentage the declaration specifies. The declaration may specify a smaller percentage only if all of the units are restricted exclusively to nonresidential use.

I would contend yes the CCR's could have larger percentage to change use restrictions.

we have a very specific list of use restrictions listed in the declaration. The association is trying to change one of them, however no, this does not concern the change of residential use, though residential use is one of the use restrictions listed in the "Use Restrictions" section. The County also declares our Planned Developement validates Residential, accessory buildings, animals, day care, garage, guest house, and home occupations are also land uses.

yes, well it is as clear as day quite frankly... section states 9.1 Use Restrictions.. these restrictions apply to all units and common elements. Under this section there is a laundry list from a through r of said use restrictions. The one our association is changing is animals. The declaration, again clear as day, states unanimous consent of the owners is required to change any use to which a unit is restricted. Well, our association ran the vote at a passing requirement of 67% and now say the vote is valid. We challenged the vote to require 100% from the time they started to conduct the vote, however to no avail. They plan to sign and record the vote as a valid amendment. Can you see the huge problem here? And there was not even any grandfathering into the clause for the homeowners whom have poulty such as I do. Looks like we will be pursuing a lawsuit unfortunately but all the communication in the world has not stopped their agenda.

Also, I want to give you a heads up for our State ... if they file the Amendment and there are owners who do not agree, you will have one year to file a legal case regarding the amendment. If not challenged within one year you could be out of luck.

excellent ideas... all of these things have been in discussion prior to the board deciding to move forward with a vote. The Board found an attorney from Hindman Sanchez who told the board they were going to challenge that animals was a use restriction, which is how they can require 67%. They know the county states animals are a land use, and yes, the county has already agreed that they would give me a legal interpretation of our planned development regarding animals as a land use (but I will ask them about the percentage required to change that plan/plat through the county). The board has pushed through... see, the other side in favor of this vote came forward threatening the board they would sue... so onward we go. Now the vote passed at 75% (but requires 100%) however they are holding the amendment as valid. There really isn't another option but going to court.

When you talk to attorneys you might ask them about Declatory Judgment. This might be a quick method of having the issue resolved. I was doing some reading on line and ran across this info: https://www.robinsonandhenry.com/colorado-hoa-attorneys/

They state:

“Sometimes we advise our clients to seek a declaratory judgment. A declaratory judgment is a judgment from a court that determines the rights of parties without ordering anything be done or awarding damages. If the HOA has ordered you to make a change or remove something from your property, often a declaratory judgement is the best court of action.”

The definition for Declatory Judgment: https://www.law.cornell.edu/wex/declaratory_judgment

Declaratory Judgment
A binding judgment from a court defining the legal relationship between parties and their rights in the matter before the court. A declaratory judgment does not provide for any enforcement, however. In other words, it states the court's authoritative opinion regarding the exact nature of the legal matter without requiring the parties to do anything.

Even though it supposedly does not require the parties to do anything, if a Judge determines that there is a 100% vote requirement to change uses and what was changed is an actual use under the documents ... the HOA would then be on notice they would loose a full blown lawsuit. It also would potentially be less expensive option.

Just an idea ...