AMENDMENTS TO DECLARATION RULES

Our annual meeting was the other night. The Board gave us paperwork indicating that an article in our declaration has been amended!? Our CC&R, by-laws and the OHIO Revised Code state that the owners can only amend the declaration and bylaws by the consent of seventy-five percent of the owners, WHICH WAS NOT DONE AT ALL! Many residents are alarmed, confused and angry. We believe the Board does not have authority to do this and it's illegal. Are we correct?

It's regarding an article allowing us to add decks and patios to our townhomes (small 28 townhome community in Ohio). It was passed and added October 2015. A new Board was put in place a year ago and they found the voting wasn't done properly and this article shouldn't have happened. And, the old President is the only one to add a deck (approved by herself mostly --- was pretty fishy). This home happens to be next to our current President who has just informed us that this new amendment says 100% of all homeowners now have to approve any requests for deck/patio additions. He say it's a Federal law!?!?! We also acquired new law firm when the new Board took over and it was the first time no attorney was at the annual meeting. FYI - the deck owner moved away after she was voted off the Board!! Looks like another BIG MESS is brewing!

Not sure. He gave the impression that our attorney's said to do this. Plus, if the other five Board members haven't researched or challenged this, we're really in big trouble.
I suppose it's pretty cut and dry that they're wrong. The very first line reads, "The undersigned, owner(s) of _______ , lot listed above, hereby consent(s) and agree(s).... Well, no one else has signed it. No special meeting, no vote.
It hasn't been recorded yet with our county. I have a neighbor who is investigating too. If they also agree it's wrong, what should we do next? We better hurry in case he does realize it has to be recorded to be in effect.
Thank you all for your input. Very much appreciated.

If we're certain they're wrong, I guess we could contact him telling him to strike it and why. He would need to show proof of how he determined this is okay. Would be great if a bunch of us signed it; not just one of us. We could also request a special meeting by getting 25% of owner's signing a letter if we don't hear from him in a timely manner.

And/Or, contact the law firm and see if they did tell him to do this.

Time is a little bit (or maybe a lot) important here. If the original covenant has been violated for say around seven years, then the covenant is considered abandoned (and so null and void). The number of years that has to go by is from case law where I am and may vary from one state to the next.

I would start with a "demand letter lite" to the Board and HOA attorney such as the following:

Dear [insert name of HOA] Board,

On or around ____, 2015, the 2015 Board purports that it amended the Declaration. The alleged amendment claims to allow decks and patios. Recently the 2019 Board purports to have further amended the Declaration to allow decks and patios when 100% of owners approve. Respectfully, amendment may only be achieved by fulfilling the requirements of [cite Declaration section on amending] and Ohio statute 5312.05. Please confirm by May 15 that you agree these amendment efforts are not compliant with either the Declaration or state law.

Thank you,

Jane Doe, [insert street address]
John Smith, [insert street address]
[and others]

See http://codes.ohio.gov/orc/5312 as needed. You may have to go to court for injunctive relief. I would do it pro se. You could even draft your court complaint, and if the HOA is still resisting, send them a draft (in a more hefty demand letter), saying, in politer language, 'Please see attached draft court complaint. It is where our group is at. Please let us know by July 1 if you insist on effectuating an invalid, fraudulent amendment.'

While you are waiting for a response from the HOA, check out Ohio county resources like the following http://cincyhelpcenter.org/how-we-can-help/ . If the latter is not your county, call them and ask if your county has a similar self-help service.

You should ressearch Ohio's Statutes of Limitations. In Florida, any challenge to the legitimacy of an amendment has to be made within 2 years of it being recorded in the official record books of the county. Now Ohio may be different, but if you were in Florida, it would be too late to challenge it, and another amendment would be required to undo what the bad one did.