HOA Amendment distributed by mail to homeowners without a voting time limititation.

Our HOA Board president decided to amend our Declarations, originally adopted in 1979, to make them "more relevant for our present community situation". I am an owner, and realtor who has lived in this HOA for 14 years, and am against the amendment, because it amends and adds to over 4 articles/sections, in our Declarations and is presented as one big Amendment to vote "yes" or "no". The copy of the amendment, prepared by a local real estate attorney, was mailed out in our July 2019 newsletter, and formally mailed the amendment document to vote "yes" or "no", in October 2019. the last page stated "In WITNESS WHEREOF, the Association has caused this Amendment to be executed this _______day of _________, 2019. Then a place below that for the president of the board to sign; then a statement below that for notorization; with ______day of ________, 2019.

As of Jan & Feb monthly board meetings in 2020, the board refers to the declaration amendment in the meeting minutes as "pending". I take that to indicate that it was not approved with the amount of majority votes needed. Is it fair to say that they can't keep this vote open until the next annual meeting in May 2020? There was no time limit established for voting on this amendment, which I objected to the way it was presented, and without giving an option to vote on each item change separately. Can't the owners declare that the amendment has failed for 2019? We also have had a change of ownership of 3 units so far during that voting period, which I am curious to see if the original owners under title at the time of initial voting, voted on it, before title change.

If you don't trust your board or PM, without having instructions in our Bylaws as to who is appointed to count votes, and how the votes are tallied, and there is no official voting observer position, how can we challenge this process? Our Bylaws being distributed by our PM, and displayed on their website, is not up to date with amendments that have been added throughout the years by previous boards, and the Bylaws are not date stamped, nor showing any revision dates. For instance our original Bylaws that I received in my 2006 resale certificate, established 3 board positions to be voted each year for President, Vice President and Treasurer/Secy for a term of one year, and maximum 2 additional positions allowed. There have been 7 board members listed in past meeting minutes letters going back as far as 2001, which were inserted in my resale certificate. Obviously, the board members changed the original bylaws without updating and date stamping them. This is very frustrating to me, as a realtor, who deals with contracts, and documents, quite often. The existing board is supposedly, in staggered terms, now, with different term lengths, beyond one year!! It is so hard to get enough owners together to rotate these board members out of office!! The PM handles the balloting process, proxies, and secret ballot tally...but on the page for voting on the mailout for the amendment vote, our names and address are printed in the lower right hand corner of the ballot, instead of putting the name & address on an outer envelope, with another sealed envelope inside with no name, for the secret ballot!! This process is a sham!

If your governing documents haven't been updated since 1979, it's most definitely overdue. As long as the current documents do not specify that there must be a defined time window for voting, there's technically nothing wrong with leaving it open ended. Generally you spend a decent amount of money in preparation of making such amendments with legal fees, sending the information out and collecting/counting the ballots. It makes sense not to implement a time frame if it is not required because if you don't get the vote in, you've wasted all that money.

Generally speaking, a Board does not have the authority to make amendments on their own as you reference above. Amendments usually have to go to a vote of the full membership and meet whatever threshold your documents specify (probably either a majority or two-thirds). A Board can pass resolutions much like the President of the United States can sign an executive order, but those are not the same as an amendment. Also if amendments are made to your Covenants or Bylaws and aren't notarized and recorded, they aren't valid. Just because the copy you have doesn't have that information doesn't mean it wasn't done, you would just need to check with your county courthouse or wherever those records are kept in Alaska.

As for the amendments all being presented together, that's not uncommon. We just went through Covenant and Bylaws amendments in our HOA and we chose to fully restate and amended both documents because there were a number of changes and it would have been much more confusing to homeowners had we tried to pass several different amendments. If there are a lot of changes, that's really the best way to go about it. Sorry to hear you're not pleased with it but the no vote is your voice.

I have seen boards extend the timeframe for voting on a proposed amendment. This was using online voting, with the voting site run by an independent, experienced contractor. The only problem I see with this is when people who have voted subsequently sell their home and yet the election is still running and may be counting these (now) non-members votes.

Is this a condominium? This will determine how to proceed to challenge a vote.

The problem is that I cannot find a statute, a covenant or case law saying it is unlawful per se. I believe I have read a lot of attorneys encourage this approach (of extending the deadline for voting), because the governing docs are so outdated that it is a risk (as a great source of confusion?) not to amend them. The only problem I would have is whether there is proof a prior owner in the HOA is not having his or her vote counted after moving, and whether the new owner was notified of the election. I saw a former HOA of mine continue to solicit votes from a former owner for several months. His or her vote of course should not be valid.

Yes, Ben, I for one, do think it is OK - perhaps even necessary, due to larger neighbor sizes, large percentage voting percentages, difficulty in getting non resident owners involved, gross apathy, etc.

As long as there is a legal, accepted practice to be followed - and, monitored carefully - it is a reasonable course of action.

This, in many cases, is the ONLY way there will be change.

I quite agree. The president and the rest of the board volunteers for these elected positions, but it doesn't mean they have the capabilities or expertise to tamper with out Declarations.

For instance the proposed amendment includes:
Item 1; clarifies the rate of assessment as a flat equal fee per unit, (which is the way we've always been assessed), but language is contradictory in a 1984 amendment stating square footage instead of flat rate in one section, which was never acted upon. (yes that could be changed). item 2; adds phrases about the new fees charged for RV storage under parking rules (which is already covered under another sec allowing the assoc to collect fees from the use of common areas as miscellaneous income , and should be added to house rules not declarations). Item 3; The Board President limits owner comments to 3 minutes at the end of meetings, she doesn't like security/surveillance signs, has a fragile ego, and takes discussions or opposition personally; so she wants to add a "harassment/stalking addition" to our declarations to legislate behavior amongst assoc members, when there is already an avenue for recourse in 2 separate areas, under "nuisance" and another under "enforcement". Item 4; Proposes to remove gutters/downspouts and skylights from association responsibility and moves to make owners responsible instead.

The board should have presented each proposed change as a separate item to vote on individually, BEFORE the president spent our money on legal fees to draft this amendment in an "all or nothing" approach, which does not allow for line item voting, just as we have in local, state and federal government elections. It's similar to what politicians use to attach controversial provisions, that would not normally pass on their own merit, to a bill that has some noteworthy value or importance. So now that this amendment is not garnering enough votes to pass, we'll all have to pay much more in legal fees to re-do the amendment if the board wants it to pass. This is just another continuing example of this board not asking for or receiving owner input or approval prior to taking on a major project using owners funds.

Sue,

To be clear, and I am sorry if I missed it, you are on the Board?

No, I am not on the board, and have tried last year to get voted in, but the incumbents were elected AGAIN. I am a realtor and have lived their for 14 yrs, and have a thorough knowledge of our Declarations; and the Bylaws (without the posted amendments, which none of us have been given).

A year or so ago, my HOA was considering a Covenant change. Our attorney (the largest HOA practice in SC) said we could do it with signed Petitions and he could have the Petitions valid for 6 months. He said he would draw up the Petitions so they would be legal. We ended up not doing it, as we went another way, but we were sure we could have gotten it passed

Unfortunately questions to Board and property manager go unanswered, as they consider me "hostile". Our Declaration specifies 51% votes needed for passage of amendments, so that would be 34 votes out of 66 units. However Alaska State Statute 34.08.250 specifies a larger percentage than the Declaration's 51%,

The Amendment : Section 5. Rate of A s s e s s m e n t Each Lot Owner shall be assessed for all common expenses (except insurance) at the uniform rate with 1/66 of total costs allocated to each Lot. Insurance expenses, however, shall be separately allocated to each Lot based upon proportionate size according to the square footage allocations shown on Exhibit A, attached hereto.

Certification
Pursuant to Article XI, Section 3, the Declaration may only be amended by
document signed by at least 51% of the Lot Owners. The undersigned president of
Innescraig Townhouse Association, Inc., hereby certifies this amendment was properly adopted, and that attached "Exhibit B" contains signatures of at least 51% of Lot
Owners (34 of the 66 Lots) who approved this amendment. This amendment shall take effect immediately upon recording

However I believe that Alaska State Statute also applies under Common Interest Ownership Sec. 34.08.250. Amendment of declaration.
(a) Except for amendments that may be executed by a declarant under AS 34.08.170(b) or 34.08.180, by the association under AS 34.08.140(d), 34.08.160(c), 34.08.200(a), 34.08.210, or 34.08.740, or by certain unit owners under AS 34.08.160(b), 34.08.200(a), 34.08.210(b), or 34.08.260(b), and except as limited by (d) or required by (f) of this section, a declaration, including any required plats and plans, may be amended only by vote or agreement of unit owners of units comprising either at least 67 percent of the allocated interests in the association or a larger percentage specified in the declaration. A declaration may not specify a smaller number unless all of the units are restricted exclusively to nonresidential use.

(d) Except to the extent expressly permitted or required in this chapter, an amendment may not create or increase special declarant rights, increase the number of units, or change the boundaries of a unit, the allocated interests of a unit, or the uses to which a unit is restricted, in the absence of unanimous consent of the unit owners.

I am questioning that by changing the common interest allocation for the insurance billing, which was previously equally shared; that (d) may be implying that a unanimous consent is required. Even if you disagree with that, (a) states that 67% agreement is required, and any percentage less than that pertain exclusively to nonresidential use.

I think the HOA should be challenged on their procedure, and not responding to my questions about this, which are not frivolous.

Assuming that none of the many statutes you cite don'y apply conflict in this particular situation, SueB, I agree with your understanding of: The may "...be amended only by vote or agreement of unit owners of units comprising either at least 67 percent of the allocated interests in the association or a larger percentage specified in the declaration."

But I, and others here, so far as I know, aren't attorneys. So I don't know what you can DO about the Board seemingly proceeding illegally.

I'm curious: My stacked condo building always has had "variable" assessments for units based on their SqFt for the HOA's master insurance policy. It feels fair to me. Is there a reason you object to this assessment change?

PS. Condos do typically have assessments based upon interior square footages, however this HOA is a P.U.D. and all of our common elements, (which are outside of the unit & buildings) are equally shared. So for instance, if a particular building has more maintenance work performed than let's say another among the 14 different sized buildings within our association, then we all share that expense regardless. The same thing applies with any of the other exterior maintenance performed monthly or annually. All common expenses are shared equally.

This insurance billing issue started about 10 years previously when we had a few selfish board members who had smaller units, trying to save some money for themselves, brought up this subject matter initially. However they really have no fair argument to make since the common elements are not based on interior square footages, nor lot sizes, and the exterior maintenance proportions for landscaping and general repairs for every one cannot be easily quantified and divided up in such a way, thus everything is shared equally. Granted our insurance bill is the biggest general expense, however landscaping and winter snow removal costs are very close behind.