houses change owner during covenants voting

We're working on getting enough votes to pass changes to our covenants. Our covenents do not place any restrictions on how long we can take to gather votes for a proposed change to the covenants. There is only minimium notification times and disclosure requirements.

So its taking quite a while to get people to vote, and several houses are for sale (one may have already sold) during this time. Is there any hard rules on how we are supposed to handle this?

For example: If the prior owner voted, does that vote stand, must we get the new owner to vote?

The closest thing to guidance on this I can find is from the Kansas homeowner's bill of rights (we're in Kansas). On the section covering voting outside a meeting, it says:
(5) Except as otherwise provided in the declaration or bylaws, a ballot is not revoked after delivery to the association by death or disability or attempted revocation by the person that cast that vote.

That appears to prevent a person from changing their mind. If a person can't even change their mind on their own vote, that would seem to set a very high bar for invalidating or replacing a ballot once it has been recieved. Plus, if a person dies, obviously there is a new owner (yet the vote of the deceased owner stands).

So I'm inclined to think once we get a vote we don't need to worry about if revoting if a house sells.

thoughts?

link to law quoted above: http://www.kslegislature.org/li_2012/b2011_12/statute/058_000_0000_chapter/058_046_0000_article/058_046_0014_section/058_046_0014_k/

that was my initial take also. But the law specifically prohibits that when the ownership change is due to death of the homeowner. That's making me wonder. I think I'll email the secretary of state and see if I can get a response from them.

When we did this, if the voting period was still open and the home changed ownership, we discarded the vote from the owner who was no longer a member of the association and send a ballot to the new owner. Of course if the voting period was closed (the amendment either passed or received enough no votes to fail) then we let things stand.

I would think that if you didn't discard votes from non-members while the voting period was still open, you'd set the stage for someone who didn't like the eventual result to challenge it. But that's just my opinion - if state law says otherwise, then it is what it is.

@SheilaH
The HOA does not have a laywer. That's not the only thing we don't have. We also don't have the required corporation, or tax returns. What we do have is a few board members who want to make members follow the rules but have excuses for why the board shouldn't. If we can get this covenants change passed, they'll be less able to cause mischief.

@CathyA3
Note that if ownership transfers due to death, it is explicitely illegal in Kansas to revoke the prior owner's vote. So if the new owner obtained the house following the death of someone who voted, the new owner cannot vote. The law is not clear for other types of ownership transfers.

BTW, I'm not opposed to letting the new owner vote. I just would prefer not to be obligated to talk them into voting if they're ignoring the communication.

We've only had 4 houses vote no, 3 of which are current or former board members.

I was basing my interpretation on that section I cited above. But your interpretation could be correct.
That was giving me the impression that statute is establishing finality once the vote is accepted by the association. A person cannot change their mind either (i.e. "or attempted revocation by the person that cast that vote").

That would make sense because ownership hasn't yet passed to a new person whose right to vote on a proposed amendment would be denied in order to preserve the vote of the dead person. Although laws do sometimes have unintended consequences...

yeah

Our HOA is small (59 houses), no longer has any common property, and does not have penalties for violations. Basically, all the HOA can do is email someone to ask they mow their yard when necessary. Its enough to encourage good behavior but not enough to cause any real trouble. We don't have any problem residents and most of us are very content with the way it is.

The current covenants have a lot of rules pretty much everyone violates. I'd be shocked if there is a single house that is compliant with everything. (stuff like: can't park in the driveway, no irrigation well, must have heat pump rather than furnace, etc).

There are a few board members who want to micromanage. They have some soapbox issues that they send letters about. If someone doesn't put their trash cans in the garage, they'll get a letter.

In '18 the board proposed covenants changes that wiped away all the things the board members violate, added a few new rules, and added penalties for violations ($50/day up to $500/mo). It was positioned as "just minor updates". There was some push back, and a board member or two resigned. I heard maybe they felt threatened. I don't know the details of the tension because I wasn't involved in the tense exchanges at that time.

At the next annual meeting I joined the board and served on a covenants committee. Fortunately, the picky board members were left out of the covenants committee. But during board meetings there were several comments (before they knew what our proposal would be) about various enforcement actions needing to wait until the covenants were revised. They have a list of things they want to whip people into shape on.
The second (current) proposal removes the silly stuff (also removes references to the declarant and common property as that’s no longer relevant). The one controversial thing in it is that it raises the bar for future changes from 2/3 to 3/4. I'm sure some of you won't approve of that given how hard it can be to revise covenants. But that’s why that change is in there. Personally I think the status quo is fine. I don't care if we never revise the covenants. I'd just like to make sure something like the 2018 proposal can never pass. I suspect I can keep anything with new rules from passing at 2/3 and at 3/4 I think its pointless to try.

At the end of last year I again agreed to serve on the board and this year I am president.

The person primarily responsible for the '18 proposal, and nit picky letters is the same person who insists we do not need to be incorporated (both covenants and bylaws say we should). She also insists we don't need to file tax returns, which is not true.

IMO, this is hypocrisy. Its as if the rules are for the members, not the board. Since they are comfortable with this and can't see any issues, I do not trust them with any enforcement power. There are some new rules I could have supported if we had other board members, but I do not trust the people involved to have any real power. And most people in the HOA don’t care enough to be involved.

As for needing to stand up in court, yes that is true. I want to keep everything proper and make sure all our actions are complaint. But I think the most likely person to sue is me

If we can get this passed, there will never be a reason for the obnoxious board members to know how strongly I opposed their prior proposal, or how far I’ll go to prevent it. If we can’t get it passed, some more direct discussions will be necessary.

I appreciate your input. I’m trying to get in touch with our register of deeds at the county courthouse to clarify some things. I’ll ask her if she’s aware of rules for ownership change.