Rule challenge

You cannot put anything that would resemble campaigning in with the ballot. You can send a flyer out repeatedly stating the pros and /or cons of the rule.

I am assuming you are amending the CCRs about renting.

Not gonna look them up, but I seem to recall it's about parking & paying someone to monitor parking.

Are you sure you're talking about an actual rule, Jill?

Back to Richard's point. We know (I think!) that a board can make a new rule following procedures in CA. and that the Owners can try to overturn this rule via a special meeting and vote by owners. Who pays to send out the ballots? If the HOA, I can see how the unhappy owners cannot have a campaign-style statement in it. If the unhappy group of owner pay to send out the ballots, I'd think they could have a campaign statement in it.

How does that work anyway in CA when enough owners want to overturn a new rule of policy re: voting. I think I've read they'll need a simple majority of all owners? We've never done it here so I have experience with it.

From what you wrote, Kerry, and a bit of what I see JillS8 has posted in the past, it sounds like a budget item for enforcing covenants. If so, then overturning the board's judgement to spend money on xyz, with xyz being something the covenants generally support, seems to be a whole other ball game.

Actually a community could overturn a budget line item, especially one that potentially is $10,000 a year. Though the use of petitions and special meetings, the members can pretty much vote on anything and potentially overturn decisions made by a board.

Thanks again, Richard. can you direct me to your source so that I can read the statue or D-S.com interpretation?

Jill

I can understand the parking restrictions and towing offenders. I am not saying I agree but I can understand..

I do not understand the $10K fee. Typically tow companies get paid by the tow and storage fee. Where did this $10K come from?

Yes

I believe boards have the right to create "fair and reasonable" as long as their governing docs give them that authority. But, you should also have general consensus and agreement throughout the community you are doing the right thing. BUT, owners also have the right, if they disagree, to overturn that decision.

If the facts are correct, a patrol company is going to have a year contract and if the "problem" is handled within the first month, then eleven months of payments will have be wasted. Kinda like calling for a "national emergency" when there isn't one.

Actually not the way majority of quorum works.

If there are 45 homes, 23 is quorum and 12 would be a majority of that quorum. If everyone votes and 33 vote NOT to overturn and 12 vote to overturn, the rule is in fact overturned.

Thank you all. You have helped me with so many issues. I just want to do what's best for the community.
Our Docs do say " a majority of the quorum " so we only need 12 to vote in favor of the rule change and we definitely have more than 15. Who knows people could change their mind. So we will see if the majority of the board still wants to proceed with the cost of a parking patrol and a special election.

Thanks everyone greatly appreciated

ADD ON

Where many get confused is when a % of All Members is called for such as it takes 51% of All Members agreeing versus say 51% for a Quorum and 51% of the Quorum agreeing.

Law firm Hindman-Sanchez's Davis-Stirling site says what LmT says. In other words, if say 30 are present in person or by proxy for this HOA member vote, then overturning the rule will require a majority of the 30, or 16, voting to overturn. See below.

Jill, I suggest you try to get the board to clear this up in advance, using the HOA attorney. This includes sending the HOA attorney to the Hindman-Sanchez site. If the HOA attorney happens to be inexperienced, the HOA attorney should at least knows there are law firms saying what LmT and I are saying. Because from the looks of the numbers, this could get quite contentious.

From https://www.davis-stirling.com/HOME/Approval-by-Members:
~~~~~~~~~~~~~~
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 member 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.

Recommendation: Because each of the poorly drafted provisions produces unintended consequences, they should be treated as approval by the "affirmative vote of a majority of members represented at the meeting once a quorum has been established." That means in an association of 100 members at least 51 must be represented (in person, by proxy and/or by ballot) before a vote can be taken. Once a quorum is present at least a majority must approve the action. If 51 are present, 26 must approve. If 80 are present, 41 must approve, etc. Finally, boards should consider amending their documents to eliminate such problems.
~~~~~~~~~~~~~~~~~

Let's go with Jill's and Richard's reasoning for a moment. Suppose all 45 members of Jill's HOA show up at the following two meetings.

The first meeting's scheduled vote is "to eliminate the ban on parking on the street from 2 AM to 5 AM." Twelve members vote yes. Thirty-three vote no. According to Jill's and Richard's reasoning, the "yes" votes win, and the HOA has to allow parking on the street from 2 AM to 5 AM.

The other 33 members are pissed. They are on their cell phones with their attorneys. The attorneys say, "Come on. Just have the board flip-flop the wording as needed. Then call another meeting." The 33 members call another meeting. The vote is "to ban parking on the street from 2 AM to 5 AM." Thirty-three members vote yes. Twelve vote no.

Who wins?

The two outcomes are contradictory. Round and round the HOA will go on the issue.

If the interpretation is as LmT, Hindman-Sanchez and I say, and no member changes her or his opinion on the matter, then the outcome is the same in both meetings: Parking on the street is banned from 2 AM to 5 AM.

A court would say that an 'affirmative vote of a majority of members represented at the meeting once a quorum has been established' is what is needed to pass a vote.

HindmanSanchez P.C. is in Colorado, not California, so not sure about their reference to Davis-Stirling?

Now, the language is poorly written, so be it. If an association doesn't like, and rightfully so, then there is a mechanism to change or amended it. Because it doesn't work to your advantage means nothing to me. People don't like the electoral college, then change the Constitution.

But make no mistake, it is not my reasoning, it is what it says.

I read the election rules for that association in Temecula. They are crap with the way delegate districts and delegate voting works. But that is life.

You make reference to the Davis Stirling lawyer and his recommendation, just change it if you thinks its not fair. That advise is how association get into trouble.

Jill, if only 23 members cast ballots (in person or by proxy), then I agree only 12 need to vote in favor to eliminate the rule. If 30 members cast ballots (in person or by proxy), then LmT, the Davis-Stirling web site and I maintain that 16 would need to vote in favor to eliminate the rule.

The davis-stirling.com site recommends this interpretation, because otherwise, illogical results occur. Illogical results include flip-flopping every year. I think flip-flopping every year is not much of an improvement over the scenario I describe.

Worse, suppose the HOA creates a rule you do like. By Richard's and your reasoning, if 30 people show, only 12 need to vote to eliminate it.

Regarding Richard's contention that the wording, "is what it says": Courts are obliged to interpret statutes, laws, covenants using the "plain meaning" rule first. Where the plain meaning interpretation does not make sense, the courts say to look to context. If there is a court challenge to the numbers here, then I expect the court will look to other sections of your governing documents.

For insurance, I recommend you try to get 23 people voting the way you want them to vote.

Richard, yes, post-o regarding the law firm that runs the davis-stirling.com site.

I do see how the wording can be confusing and misconstrued. However, if I were Jill, I would prefer to err on the side of caution and place my efforts on getting more than half of the members (who vote) to vote in agreement. Besides the fact that it's only fair.

Having just gone through a special assessment ballot in my own HOA, which like Jill's is fairly small, getting affirmative votes was manageable and far preferable to trying to explain why 12 votes in favor outweighs 24 or more against. On a rule change so important, surely that would be better than possibly winding up with a much larger legal bill?

Nevertheless, I find this subject interesting and albeit confusing.

That's not what I was trying to say. My point is, Jill would be better advised to concentrate on getting a clear win on such an important vote. That's what I did in our recent situation.

My understanding of a vote within an HOA (which is what we are discussing here) is that which is generally accepted. A majority of the quorum voting.

40 members entitled to vote.
Quorum is 21
36 vote

Therefore, 19 or more affirmative votes to pass.

That's fair. 36 vote. 24 against and 12 affirmative win, is not.

I realize It could be argued in court with the example given in Davis-Stirling. I guess if Jill and her supporters lose their bid she could always fall back on that argument but, personally, I wouldn't risk it.

Just my opinion.

OR, I may be getting things all screwed up!

Richard,

Getting aggressive again :-)

You are noting only for a California HOA - i.e. D-S?

Civility first.

One neighborhood in which I am a Non Resident Owner, previously had no quorum metric - whoever showed up constituted a quorum.

I was going to leave it the same during our recent Bylaws rewrite, but a minority of Board members really wanted a number, so we settled on 10% ...remember, this is a voluntary HOA, so this would be 10% of the previous year’s membership ...117 owners of 189 are members ... so, 12 properties.

Quorum of 12, majority of 12 to pass anything to be voted on = 7 votes. Two people actually own six properties, so, if we did need to vote, those two people would only need one more person to side with them (assuming only 12 people attended).

To be clear, unless your governing documents specify differently, overturning a rule change does not require secret balloting.

Originally our docs called for a 50% Quorum at our Annual Meeting in order to conduct business. While we make reports at our Annual Meeting (financials, committee, etc.) and we have a open Q&A Session, the only real business we have ever conducted at our Annual Meeting is our BOD Election.

The first thing we did after the turnover from the Declarant was get the 50% changed to 20% which took 51% of all members to approve. One thing we had to explain was all the other % requirements (Covenant changes, Bylaw changes, etc.) remained the same. Say it took 2/3rds of all owners to change a Covenant, that stayed in effect. This took some serious explaining and though it passed, I know some are still confused about the differences.

Other than BOD Elections, we have never had a vote of any kind at our Annual Meeting. I do not anticipate any.

The way I was taught and this is with maybe three attorneys, is that if it required a secret ballot to approve, it would require a secret ballot to overturn or change. A rule change, as you know, requires only a Board vote and never done by a ballot, secret or not.

I found this.

The vote at the special meeting must be conducted in accordance with the secret balloting requirements under Article4(commencing with Civil CodeSection 5100) of chapter 6(Civ.Code sec. 4365(b).

So that would be a secret ballot I assume.