Can't pass a 75% vote

Hello all,

Our HOA declarations include a statement that all commercial businesses must close by 11pm every night. Several years ago, a new owner purchased a commercial business in order to open a bar, but "did not realize" that declaration was in place. Ever since, it's been a fight to get the hours extended to either 1am or 2am every night rather than 11pm.

The declarations also state that any changes to the declarations require a 75% vote in order to pass. We've voted FOUR times on this:

2013: 9-8 (52%, fail)
2014: 7-11 (38%, fail)
2015: 11-7 (61%, fail)
2017: 11-5 (69%, fail)

(Those numbers don't always add up to 18, because sometimes we have had 1-2 delinquent units ineligible to vote.)

I understand the 75% requirement is in order to protect the HOA from itself in the short term. But at what point are we shooting ourselves in the foot over the long term?? Our declarations were written in 2005, at a time when there was a lot of crime and not a lot of businesses in our area. That is changing rapidly. We're on a corner...there's not a lot of room for "night life" on the East-West street, but the North-South street is primed to explode over the next 5-10 years. FOUR new "night life" businesses have opened within TWO blocks of us, in the last two years, in locations where there was previously nothing at all.

For now we seem to be "stuck" in this position where a majority wants to allow this bylaw change, but the remaining 5 sticklers can continue to obstruct the situation indefinitely. Two of them don't even live in the building, and I wonder what their motivation is to vote "no," because it's my understanding that bars are generally good for property value on a corner where drug dealers and prostitutes would otherwise be present.

The board (who voted 3-2 in favor of the measure)

Is there a way to change the 11pm declaration, or suspend it indefinitely, without a 75% vote? Or do we need to just wait until the bar owner CAN pass the 75% vote?

Thanks in advance!
~David

Thanks for your response! That is a good concern and I don't have a legal answer, but our bylaws grant the association the discretion to "suspend voting rights of the Owner during any period of delinquency." We apply that at delinquencies of 90+ days, which is the same time we apply a lien on the unit, send it to collections, start thinking about foreclosure, etc. Essentially we give the owner the maximum reasonable time that we keep track of, 90 days, before they incur every penalty available. This has been effective in keeping "pseudo-responsible" owners "actually responsible," and nothing we do to "irresponsible" owners matters at all so there's no reason to wait longer than 90 days.

And devil's advocate on this -- people with 90+ day delinquencies aren't just behind on their bills and hurting their credit. Delinquent units impact an HOA's ability to take a loan, the likelihood a lender will give a loan to purchase a unit in that building, the property value of the building, etc. Why should delinquent unit owners' property titles be protected from harm, when they are actively harming everyone else's?

Anyway, with two delinquencies we needed 12/16 votes to get 75%, and without, we needed 14/18. *Given the outcome,* there's nothing those two votes could have done to impact the outcome of the vote.

The bylaws only apply to corporate activity NOT to the 'base contract' a/k/a CCRs.

In an ideal world, yes, but it depends on the actual wording.

Not being eligible to vote in elections and not being eligible to vote to amend the governing documents, in my opinion, are two different things.

Personally, I don't think an Association can, or should, prohibit any member from voting in amending the governing documents.

David- Your reading it wrong. I'm sure it says something close to....The affirmative vote of not less than 75% of the owners is required to amend the covenants.." It doesn't matter if they are delinquent or not, you need their vote to change the covenants. Elections and the other mundane elections they can be barred from.

Fred- I see what you did there....

Past voting patterns are not a reliable predictor of future votes. Especially if there is any turnover of ownership.

DITTO DITTO DITTO

The purpose of requiring a super-majority to change CC&Rs is to protect the individual owners, not the HOA. The principle is that owners buy property knowing the restrictions and a mere 51% of the owners should not be able to impose their will over the other 49%. To me, the CC&Rs are like a constitution, and shouldn't be easy to change.

I have a little sympathy for people excited over buying a new home not realizing there are deed restrictions but not for a business person. There is really no excuse for him not knowing.