Restated CC&R's

Started by MW7 • 8 replies • 499 views

💬 Join us to post & get advice from 50,000 HOA & Condo leaders.

⚡ Takes 30 seconds

Already a member? Log in

MW7 (Arizona)
Posts: 3

Posted:

An approved and filed CC&R required restatement to be current with new state and county legal considerations. After several committees and the Board approved the document it was approved by the membership with the contingency it first pass legal perusal. Our attorney noted numerous wording and actions that would not pass muster in a legal proceeding. The changes went back to the committees. Again, the Board approved the modifications and sent it out to the membership for approval. As a result of some last minute "bundling" of votes it did not pass. The question becomes one of the homeowners who didn't desire the legal change and wanted the original passage to be filed hired an attorney who is claiming, we are bound by the first vote even though not filed. The Board for the time being would prefer being bound by the original filed CC&R's and would prefer starting over fresh once we are allowed to do so in compliance with social distancing. We may even be able to invalidate the vote with the bundling of last minute "no" votes being submitted by an individual homeowner messenger instead of the individuals themselves. Comments please.

TimB4 (Tennessee)
Posts: 21,059

Posted:

In my opinion, the board dropped the ball.

I agree that the board is tied to the first vote, as it approved by the membership.
If there are legalities about the wording, that will come up if the document is ever challenged in court. Until then, what was written, presented and approved by the membership is what needs to be complied with and filed.

The process should have included a legal review PRIOR to bringing it to the membership for a vote.
Of course, you know that now.

GenoS (Florida)
Posts: 4,276

Posted:

"Bundling"? What do your Bylaws say regarding proxies or absentee voting? An owner can't just waltz into a meeting where a vote of the owners is to take place, announce that his neighbors agree with him and therefore he's going to cast votes for them, too (bundle).

Also, I think the more "normal" procedure is to get the wording of the amendment blessed by legal counsel before asking the owners to vote on it.

CathyA3 (Ohio)
Posts: 6,299

Posted:

I actually agree with the board: stick with what you've got and go back to the drawing board. It costs money to record things, and you already know your new CC&Rs are flawed. So save the money for the re-write. When we were amending our CC&Rs, we stopped enforcing a couple restrictions in the expectation that the new language would be approved. So something like that would be an option.

You're right that covid-19 is likely to make permanent changes in how we do business - lots more done online, for example - and it would make sense to consider making such changes now while you're re-evaluating everything.

It's OK to have a committee evaluate your current CC&Rs and see if there is anything that isn't working well for you. It's a good idea, in fact. But the actual re-write requires a lawyer - it's not a job for amateurs since it requires a fair amount of knowledge that they don't have.

MW7 (Arizona)
Posts: 3

Posted:

Neglected to share the Annual meeting Minutes reflect the vote of approval was contingent upon legal approval. Does this carry any weight?

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By MW7 on 05/17/2020 3:27 PM
Neglected to share the Annual meeting Minutes reflect the vote of approval was contingent upon legal approval. Does this carry any weight?

In that case, the approval is null and void. This is another good reason not to record the flawed CC&Rs. On the other hand, you now have a good idea of what the owners want, so let the attorney incorporate their wishes as much as is legally possible.

KerryL1 (California)
Posts: 14,550

Posted:

Can you give us the actual wording of the Annual Meeting minutes re: the contingency, MW?

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By MW7 on 05/17/2020 3:27 PM
Neglected to share the Annual meeting Minutes reflect the vote of approval was contingent upon legal approval. Does this carry any weight?

It seems you did not get "legal approval" before submitting to owners for approval. If true, I would have voted against approval. That said, I believe "outdated" docs can be "read through" (ignoring out of date/illegal things) thus no need to re-do unless one cannot read/comprehend.

MW7 (Arizona)
Posts: 3

Posted:

Minutes reflect final secretaries notes "In closing, the legal documents of the Association will be submitted to an attorney for approval"(31 of 59 homeowners attend Annual meeting).

The following Board meeting 27 days later read "Review clean-up of recommended rewrite of GVTH11 CC&R's by attorney with Architectural committee recommendations". Indicating the rewritten CC&R's now included all the attorney's incorporated amendments/additions and were again ready for final approval (19 of 59 homeowners attended to discuss attorney amendments/additions).

🎯 You've read this entire discussion

Join the conversation with 50,000 HOA & Condo Leaders:

✓ Ask follow-up questions
✓ Share your experience
✓ Get expert advice
✓ Access 350,000 discussions

Create Free Account →

⚡ Takes 30 seconds

Already a member? Log in here