Errors made in CC&Rs

Our CC&Rs were revised by a group of amateur volunteers; they added new restrictions (such as size of permitted trees) that were not there in the previous document. In other words, they place restrictions on properties that had not been previously present. I do not believe that such changes can be made to CC&Rs without 100% of the owners agreeing, in writing. Instead, when they had satisfied the quorum, they simply went ahead and had the documents recorded evidently because they were unaware that such increased restrictions will require 100% membership "siging on". Quite a number of the owners either voted against these restrictions, or didn't sign anything or vote at all. Am I correct? and if I am correct, how does one go about getting these errors corrected?

What does your CC&R's say is the required voting to make a change? Do they also require a special meeting? It's not untypical for them to require a special meeting or membership vote of only 75 - 100%. They are usually higher than just the By-laws for required vote.

With someone with experience with tree sizes, our HOA did a similar thing. Believe me, wish we had such a rule at the beginning. We now have towering pine trees with a bug infestation towering over homes at the border. 1 fell on a house crushing the dining/kitchen area. The Bradford Pears would not have been planted...

So what is the issue with the tree size as it is a good idea?

Making changes that directly impact what one may do with one's properties requires signatures; it is equivalent to changing a deed even when it is in CC&Rs! 100% of owners would have to sign the document. Our board obviously did not realize that and passed an "amended" CC&R with many changes (restriction on fences, trees, etc. such restrictions that did not exist in the previous CC&Rs at all). I am told that just having the required quorum in favor is not adequate. 100% of owners would have to sign their assent to ratify such things; since it was not done properly, the CC&RS are "in limbo". What they did was like having taken property rights away without the owners' permissions. This was done several years ago; the "CC&R writers" were volunteer amateurs who thought they did not need professional help. My understanding is that until "discovery", there is no statute of limitations, and after it is discovered (within past month), the statute of limitations is three years.

Not always. It's a common misperception that certain changes to the CC&Rs have to be approved by 100% of the owners. In very specific cases, such as dissolving the HOA, or buying or selling real property, or a significant alteration to the common elements, or re-purposing the use of an amenity, then maybe, just maybe, a 100% vote of approval would be necessary.

Changes to "what one may do with one's properties" in a general sense probably do not requre unanimous approval. Check your documents carefully and see what Davis-Sterling has to say.

Davis-Stirling is usually very helpful, but has nothing that applies to this situation. Our properties were severely impacted by addition of a number of items relating to property rights. Severe restrictions were created where there had been none at all. I know of one owner who has recently been forced to spend over $9000 to defend a healthy oak tree that is 50 years old, planted during the earlier non-restrictive CC&Rs and not blocking any "views". The non-restrictive original CC&Rs were in effect for two decades prior to the restrictive "changes". In fact, as one reads through the current CC&Rs it is easy to see what was tacked on by amateur CC&R "re-writers", because it does not use standard legal syntax. Numerous examples such as "You may not..." rather than "shall not"; or "it should" rather than "it shall". Even though our boards have spent over $100,000 during the past 4 years in attorney fees in defending these poorly-written restrictions, the general population (avg. age 74) thinks that "revising the CC&Rs costs too much". (I am NOT kidding.) Go figure that! (As one person has stated "senility rules.") Plus - the current board's very reputable attorney (Epsten Grinnell & Howell) insists that anything changing real property rights does INDEED require a 100% signed permission to be valid, thus expanding difficulties in repairing what we have; unless,of course, we apply EG&H's same reasoning to their faulty creation, for the purpose of decertifying the current messed-up-CC&Rs. He says that 100% signatures is a "requirement" for the sorts of changes that are needed - though no one paid attention to that requirement in the past when it was ignored. We need a "fix".

Look, Elaine, you must cite your CC&R's article & section for amending them. I'm not buying that they're silent on the % required to amend them.

If by canoe they are silent, then have Your HOA attorneys cite THEIR source.

Btw, the list you provided appears to involve bylaws, not CC&Rs.

Are you on the Board?

Krry1 - The quorums, etc. are clearly stated for amending CC&Rs, and they are very standard. The problem is that the attorney states that "signed permission by 100% of owners" is required - even though when the problems were added to the CC&Rs, it was done with the ordinary quorums. Another attorney independently tells me that you CANNOT change basic uses of real property through CC&Rs, and agrees with the board's attorney about the 100% requirement, even though it was NOT done when the problems were added to the CC&Rs. This has to do with basic law about real estate titles; remember that your CC&Rs are, in effect,an extension of your original deed. The requirement would thus is the same requirement as tacking something extra onto your deed. Most boards have no idea about this, but if you carefully inspect professional postings about what items ARE subject to CC&R change, you will find that they are far from limitless! I listed them above.

Their exists a legal principle of 'equity'.

Simple amendments EASING or MODIFYING existing contractual restrictions may be made by majority or super-majority vote as specified within the contract.

however

The ADDITION of 'onerous' restrictions (such as banning renting) where none existed before has been found to require 100% agreement by the 'contractees' who purchased subject to RECORDED restrictions.

The attorney is most probably correct.

Royal: The friend who spent $9,000 - was spent for advice and guidance when the then-board persistently threatened her. I think she should have answered them in superior court, but they finally agreed to back off. As you probably can imagine, the individual who complained constantly about the 50 year old oak tree is, well, "not right between the ears". The board stupidly thought they could satisfy her by going her neighbor's 50-year-old oak tree. Boards when I served would have put a fast stop to the nonsense before they accumulated at least a ream of complaints, but not the board here.

RoyalP - yes exactly! "Onerous" restrictions were added without a 100% signed vote. No one knew to question them. In fact they were written by some volunteer amateurs, who didn't consult an attorney until it came time to vote on them! Probably the attorney had no idea that they were adding restrictions where none had existed. So now, very recently we figure it out, and "bingo!" - they cannot be reversed unless there is that 100% signed vote. You have put your finger on the problem. The only slight bit of hope is that since we just discovered this fiasco, the "statute of limitations" of three years is just beginning NOW, with the discovery. So, the problem now is figuring out some way to "unwind" the Gordian Knot.
Thank ALL of you very much!

Consistent with this statutory scheme, courts have uniformly held that changes to those fundamental property interests identified in the statute can only be accomplished with the concurrence of all of the owners.9 For example, in Theiss v. Island House Association, Inc., 311 So. 2d 142 (Fla. 2d DCA 1975), the court invalidated an amendment to the declaration purporting to change the percentages by which the owners shared in the common expenses without the unanimous consent of the owners. The court stated that in the absence of a statement in the declaration that an owner’s parcel could be modified or changed without his consent, the owners “had a right to rely on the fact that their proportionate obligation to share in the common expenses could not be altered unless they agreed to it.”10

bold section = ?????

Ealins wrote: "I am told that just having the required quorum in favor is not adequate." And, "They say that the problem cannot be fixed by a ballot voted by the prescribed quorum."

But I & others have been asking: What do your CC&Rs say about the % of Owners needed to vote to approve changes to the CC&Rs. I did not ask about "quorum."

I also pointed out that your list of permitted changes seem to refer to bylaws.

I usually agree with RoyP, but the example of common area expenses percentages to Owners being changed seems to be an entirely different matter.

Kerry,

Am I misreading?

You asked for the language related to CCR modifications, but still did not get this from Elaine?

Elaine ... can you provide the exact, quotes from your CCRs that related to modifications to those CCRs? Pardon the request if you provided this, above, and I missed it.

Thanks, Kerry - no doubt I was misusing the "quorum" term and you are correct - thanks!... The requirements do indeed function in that manner, of course. "Royal" from SC's understanding is what was needed. The main aim, of course, is to figure out how to fix it. To know that these restrictions were added in one way, but now require 100% of owners for their removal, is more than slightly crazy. Knowing also that the lack of understanding in our population (average age 74) is probably too great to expect that an educational approach will work, we will have to think further. My advice: don't EVER buy anything in a "senior" (over 55) community. That may sound ridiculous coming from an 84-year-old like me, but you heard it here!!

Although there are plenty of errors, we have 410 condo members and 1349 single-lot families - and the documents were set up in a way that requires the condo members to pay 22% of the costs of single-lot area "enforcement". Plus the condos pay all of their own "enforcement costs". I would think that probably qualifies as an "onerous burden" especially since the condo owners did not give it 100% support.

Thank you, George.

That sounds to me like you're trying to hide something. Perhaps the debate IS about whether or not your problem is an "equity" matter. You have decided that it is. Maybe it is, maybe it isn't, but you getting to set the parameters and boundaries of debate, what questions are acceptable and which are off-limits, isn't going to help your cause. Very often questions an OP deems irrelevant turn out to be very important after all.

I agree. She wants people to agree with her no matter what her docs say.

Kerry, I have no case law to cite -- all I have is stated opinions of two attorneys; and the scraps of information from "Royal of SC" gives some ways this can happen. In fact even Davis-Stirling.com doesn't have any citations that are helpful. I suspect (or at least HOPE) that this is a rare situation. It is interesting that everyone knows about state laws; everyone's CC&rs carefully conform to their own state laws, as do ours. This situation involves basic property rights and obligations that cannot be changed through CC&R changes; and will require 100% of owners to approve them. That was not recognized, and was not done when these changes were made without consulting good legal advice. One attorney has expressed the opinion that this situation doesn't appear in case law because it is generally prevented by the attorneys who examine proposed CC&R changes. I think he is correct.

You need 100% approval if (example) you were to add strict tree regulations where absolutely NONE had existed before.
You need 100% approval if (example) you were to charge people living in one of your "sub-communities" for expenses that had only to do with an entirely different "sub-community". (That would be like taxing folks in one town for expenses that related only to a different town.)

Both of these errors (and more!) were made by our amateur "CC&R-writers", because they did not require 100% of owner approval. They didn't know any better, obviously. So now the question is "how can it be fixed?"

Elaine
Is there a reason why you use the word “quorum” when you mean “voting threshold” ( which you claim is 100%) to amend your CCRs?

The quorum is the number of people needed who must be present to legally transact business at the meeting. The 100% vote threshold for approval can be achieved by in-person voters, returned ballots, electronic, or proxies, if your rules allow any of these methods.

How to do it?

The ballot can have several motions on it.

1) Motion to rescubd CCR #12 because the vote process was in error (did not meet its approval vote threshold).

2) motion to approve new CCR ....

3. Motion to Rescind CCR concerning tree size.

4. Motion to place tree size regulation in the Architectural Rules and Regulations.

#1. Motion to rescind ..

Right.

Elaine

Scream 100% as loud and as much as you wna\ant but until you show us proof, you are wasting our time. Bye.

NOTHING

that is a major argument against the HOA concept

however

unless the change is actually found by a court to be onerous after a LENGTHY and EXPENSIVE trial it WILL STAND

unless you are prepared to shell out a HUGE retainer you are 'stuck' with the amendment

next time: CAVEAT EMPTOR