Updating Covenants

MelissaJ5 (Texas)
Posts: 34

Posted:

Looking for input and feedback for those that have updated/changed their covenants. We need to update ours since they were put in place in 1974. A lot has changed since then and we are in desperate need of updating! Any words of wisdom, caveats to look out for? Just looking to avoid any pitfalls that some of you may have experienced.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Mel

Why update? Many say to remove wording about the Declarant and to be current with existing law. All fine and good but typically such an update will cost about $3-5K and require owners to approve. A lot of money and trouble.

As for:

Eliminate the Declarant stuff. It can be "read through" such as the Declarant shall have so many votes per lot. Well once the Declarant is gone, they have zero votes.

Current with existing law. Even if the Covenants have things in the that are no longer legal, such as no people of color, it is illegal and can be ignored.

Now if trying to change things like Quorum requirement, etc. that is another matter and should be done as an Amendment versus a re-write.

CathyA3 (Ohio)
Posts: 6,299

Posted:

* Updating CC&Rs is a legal process. Make sure you understand all the necessary steps and follow them to the letter. Get anything wrong, and your efforts will be wasted.

* This is a job for a lawyer who is well-versed in HOA and COA law. Not only will a lawyer speak the necessary legalese, he or she should be aware of any updates to state laws or applicable case law that may need to be incorporated into the new documents.

* The board should have a clear idea ahead of time what they want to do before meeting with the lawyer. Removing any reference to the Declarant makes sense. In addition, are there any provisions in the current CC&Rs that have been problematic, such as a restriction that has been difficult to enforce or that has been ignored altogether? It would make sense to get rid of these as well, assuming it's legal to do so.

* Publicize the project in your community. Get homeowners' feedback on things they like or don't like in the current CC&Rs. Also let them know if the lawyer says that one of the community's hot button issues either must be in the document because that's the law or won't be because it's illegal or unenforceable. The new CC&Rs will need to be approved by a majority of the membership - and often a super-majority of 67% or 75% depending on your state's laws. The voting will go more smoothly if people know what to expect and are on board with it ahead of time.

* A few years ago we had our attorney draft three amendments to our Declaration. The entire process, from drafting to recording the final approved amendments with the county, took about a year.

GenoS (Florida)
Posts: 4,276

Posted:

We had about a dozen amendments to our Articles of Incorporation, Bylaws and CC&Rs a few years ago. We spent a LOT of time on them and came up with pretty specific changes we wanted our attorney to write up. When the year was winding down we picked 1 of our proposed changes to push forward with because we thought it would be non-controversial and a good test case to go through the process. With 11 others waiting in the wings.

The amendment was to the language of the CC&R's section on "Nuisances" and was tailored to pets (leashes, barking, poop, loud birds, etc.). The attorney took our suggested language (all 4 paragraphs), changed 3 words, sent it back with his legal "seal of approval", and charged us $3850.

All of the other contemplated changes hve been on the back burner ever since.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Geno

Did owners not have to vote on the changes?

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By JohnC46 on 08/16/2020 10:55 AM
Geno

Did owners not have to vote on the changes?

At least in my state, if the amendments only bring the CC&Rs into compliance with existing laws - no other changes - then a vote of the membership is not required, only approval by the board. Other states may be the same.

In this case, you could argue that the amendments wouldn't be necessary since state law takes precedence, and if an association is strapped for funds that would be a good reason to hold off. FWIW, it costs us roughly $1000 per amendment, which includes drafting the amendment and recording it with the county after the vote.

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By JohnC46 on 08/16/2020 10:55 AM
Geno

Did owners not have to vote on the changes?

They did. The "pet amendment" passed with flying colors. That was the one the attorney charged us almost $4,000 for.

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By CathyA3 on 08/17/2020 5:13 AM
At least in my state, if the amendments only bring the CC&Rs into compliance with existing laws - no other changes - then a vote of the membership is not required, only approval by the board. Other states may be the same.

In this case, you could argue that the amendments wouldn't be necessary since state law takes precedence, and if an association is strapped for funds that would be a good reason to hold off. FWIW, it costs us roughly $1000 per amendment, which includes drafting the amendment and recording it with the county after the vote.

My understanding in FL is that if new or changed laws supercede what's in the documents then those parts of the documents now in conflict with the new laws can just be ignored. Changing the documents still requires a vote by the owners. Our rationale for changing certain language to conform with the newer laws (even though we don't have to) is so that the situation will be clear. Telling new owners coming in, "Oh, we don't worry about that because the laws have changed," is clear as mud. We have more than a few things in our 30+ year-old documents that fall into this category.

Then there's the Florida Constitution which says no new law can impede any existing contract rights. So just because the legislature or county government passes new statutes or ordinances, the answer to, "Does this new law apply to our HOA?", is, "it depends".

JohnC77 (California)
Posts: 562

Posted:

Quote:

Posted By GenoS on 08/17/2020 12:46 PM

Posted By JohnC46 on 08/16/2020 10:55 AM
Geno

Did owners not have to vote on the changes?

They did. The "pet amendment" passed with flying colors. That was the one the attorney charged us almost $4,000 for.

One down, 11 to go @$4000.00 a pop or $44K. What a bargain.

Might I suggest a re-write

MelissaJ5 (Texas)
Posts: 34

Posted:

I should of added that our board is comprised of 3 new board members (myself included) and so I am learning as I go. We recently conducted a community survey and many residents stated they would like to see our covenants enforced. Most complaints are coming from frustrated residents having to look at this huge 6000+ sq ft home sit uncompleted for over 3 years. Most recent update is that it will be completed by November. We will believe it when we see it! The city has been involved and have been extending permits etc. So we would want the authority to impose fines for not completing the home building process in the one year time frame that is stated in our covenants. Had we been able to actually enforce this policy we might not still be dealing with this. The next issue is excessively barking dogs...which is a common issue in almost all communities. In general, we are a big dog with no teeth. We can be scary but have no authority to "bite" violators.

From the responses I've received it sounds like there is a way we could bypass having to get the 70-75% community buy in by changing the wording in just the declarants? Am I understanding that correctly? If not, I guess I need this explained in layman terms :-) Also looking for any pitfalls to avoid for those that have done this.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By MelissaJ5 on 08/30/2020 9:38 PM
... snippage ...

From the responses I've received it sounds like there is a way we could bypass having to get the 70-75% community buy in by changing the wording in just the declarants? Am I understanding that correctly? If not, I guess I need this explained in layman terms :-) Also looking for any pitfalls to avoid for those that have done this.

That would surprise me. Governing docs are legal agreements that form part of the deed on people's homes. They must be done correctly, or else they're not legally binding or enforceable (and will create the basis for future litigation). It's possible, maybe, in some states or communities that the board can amend the bylaws without an owner vote, but definitely not the CC&Rs.

Tread carefully.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By MelissaJ5 on 08/30/2020 9:38 PM
From the responses I've received it sounds like there is a way we could bypass having to get the 70-75% community buy in by changing the wording in just the declarants?

I think you may be referring to CathyA3's and GenoS's exchange about what to do when a new state law or new federal law suddenly comes into existence, and it's clear from the new law that it applies to your condo/HOA. (New laws do not always apply to old HOAs/condos.) If the new law does apply, then the board must follow it, regardless of what is in the Bylaws and Declaration. No amendment is needed. Do Texas statutes say what Ohio statutes say about amending in such situations, per what CathyA3 noted (as repeated herein)? Maybe. I could look it up for you (and I will if you ask), but I think your board would be better off consulting an attorney.

MelissaJ5, is this a condominium?

What is the nature of the changes to the covenants that your board seeks? In your words, they are in "desperate need of updating." Why? I would bear in mind that a lot of covenants are, of necessity, written in legalese.

Quote:

Posted By GenoS on 08/17/2020 12:58 PM

Posted By CathyA3 on 08/17/2020 5:13 AM
At least in my state, if the amendments only bring the CC&Rs into compliance with existing laws - no other changes - then a vote of the membership is not required, only approval by the board. Other states may be the same.

In this case, you could argue that the amendments wouldn't be necessary since state law takes precedence, and if an association is strapped for funds that would be a good reason to hold off. FWIW, it costs us roughly $1000 per amendment, which includes drafting the amendment and recording it with the county after the vote.

My understanding in FL is that if new or changed laws supercede what's in the documents then those parts of the documents now in conflict with the new laws can just be ignored. Changing the documents still requires a vote by the owners. Our rationale for changing certain language to conform with the newer laws (even though we don't have to) is so that the situation will be clear. Telling new owners coming in, "Oh, we don't worry about that because the laws have changed," is clear as mud. We have more than a few things in our 30+ year-old documents that fall into this category.

Then there's the Florida Constitution which says no new law can impede any existing contract rights. So just because the legislature or county government passes new statutes or ordinances, the answer to, "Does this new law apply to our HOA?", is, "it depends".

BillH10 (Texas)
Posts: 1,217

Posted:

Melissa

A question, then some advice:

I assume you are in a homeowners association, is that correct?

I understand your concern about documents the age of yours but that is not necessarily a reason for revisions. What is a good reason is if there are provisions in the documents which do not support the objectives of the Association, or which are not present and should be.

Do not be concerned about language in the documents regarding satellite dishes and other provisions which have been rendered moot by legislation. You also should not revise the documents simply to remove references to the Declarant.

You mentioned fines: if there is not explicit language in the documents which provides the Association the ability to establish fines for out of compliance matters, you cannot do so.

I would not attempt to amend the documents to address barking dogs. It is likely enabling language is present already. If it is, you must first establish a compliance process to address the dogs and other issues. There is an entire process which must be established, filed, and distributed to the owners before any steps can be taken.

A more effective, and less costly, solution is to determine if your town or city has a 'barking dog ordinance'. If it does, talk with the town or city about how to file complaints.

Some years ago the Legislature amended the property code, the maximum required percentage to amend a Declaration in Texas is 67%, regardless of any higher percentage in your Declaration. If the percentage is lower, that figure controls.

Finally, I strongly suggest the three of you read and reread your Bylaws and Declaration until you are familiar with them. Amending the documents is not something the Board should do on its own, you must consult with an attorney who specializes in HOA matters, not just a real estate attorney or one who is a cousin of your brother-in-law.

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By BillH10 on 08/31/2020 7:57 AM
A more effective, and less costly, solution is to determine if your town or city has a 'barking dog ordinance'. If it does, talk with the town or city about how to file complaints.

Our problem wasn't barking dogs, but rather owners letting their dogs run around without a leash. My county does have an ordinance requiring dogs to be on a leash but it doesn't apply to private property where an owner has given permission for animals to be off-leash. The county told us it was up to us to handle the problem. The county would laugh at us if someone here made a complaint about barking dogs. "We've got more important things to do," is not an unusual response from county officials. At least not in my county.

CathyM10 (Missouri)
Posts: 8

Posted:

We update/add fairly regularly. Bylaws committee does a draft, then for lawyer to review, changes made if needed, voted on by the Board and then voted on by members.

Some pass, some don't but that's covering all your bases. Good luck!

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Cathy

Personally I would not pay what seems to be the going rate to update Covenants, $5K to 10K. Can you give us an idea of some of your updates that passed and some that failed plus the cost of each.

Thanks

MelissaJ5 (Texas)
Posts: 34

Posted:

Yes, we are part of an HOA. Most everything I've read said that any CC&R's older than 10 years should be redone. I am just trying to flesh out our options and learn all I can about the process. I think most of what we want to achieve could be accomplished by revising the declarants. As I've mentioned above, at the very least we would want to update with a few addendums giving us the authority to escalate if necessary (e.g. fining) and a few other tweaks. We are well aware that as a board we are not allowed to make ANY changes without community approval and an attorney.I really appreciate your advice and will be passing it along!

MelissaJ5 (Texas)
Posts: 34

Posted:

I have read a few articles suggesting establishing a committee to handle this. I think that's a great idea.

MelissaJ5 (Texas)
Posts: 34

Posted:

No we are not condos...single family homes. I do not have all of the details on what they would like to change just "can you look into the process for changing it".

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Mel

If you docs give you the right to fine, that is all you need. As far as escalating fines, that would be in the Fining Schedule as set by the BOD. I do not like putting things in docs that limit things such as a limit on fining escalation.

DaveP8 (Oklahoma)
Posts: 47

Posted:

If your state law allows it, I'd strongly recommend changing the approval requirement for future amendments from 60% (or whatever yours is currently) of total homeowners to 60% of those that submit ballots. We recently attempted the same as what you are doing and got 90% approval of those that voted. Unfortunately, only 30% of homeowners returned their ballot and we fell short of the needed 67% approval of total homeowners by around 85 votes. If people don't care enough to return a ballot, then that should not count as a "no" vote.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By MelissaJ5 on 08/31/2020 3:44 PM
I have read a few articles suggesting establishing a committee to handle this. I think that's a great idea.

It's fine to poll the membership to see what's working and what isn't.

But dealing with amendments is a job for professionals who understand current HOA law. A committee ls likely to come up with at least a few things that aren't lawful, and you risk them getting an attitude about the whole process. "Why did you ask if you're not going to accept our suggestions?" Or worse when your attorney chucks out everything they've done.

I recommend that the board educate themselves about changes to Texas law so that they have an idea of what needs to be changed, and then let the membership weigh in on their opinions.

Remember that it costs nearly the same - in terms of time, effort and money spent - to have an amendment that fails vs. one that is approved. The only difference is whether the amendment is recorded in the end or not (assuming that your state statutes require CC&Rs to be recorded). It's best to have a really good idea of what's likely to pass before you start the process with your attorney.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By DaveP8 on 08/31/2020 4:56 PM
If your state law allows it, I'd strongly recommend changing the approval requirement for future amendments from 60% (or whatever yours is currently) of total homeowners to 60% of those that submit ballots. We recently attempted the same as what you are doing and got 90% approval of those that voted. Unfortunately, only 30% of homeowners returned their ballot and we fell short of the needed 67% approval of total homeowners by around 85 votes. If people don't care enough to return a ballot, then that should not count as a "no" vote.

The reason for such a amount (51%, 2/3rds, etc) is to assure a "small number do not control. In you example 30% returned a ballot so you are say it should be 60% of the 30% or 18% of total owners. NFW.

To change something, let us say 51% required, says 51% have to vote Yes. No votes or not returned ballots do not matter if 51% say Yes, it happens. It less than 51% say Yes, it does not happen.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By JohnC46 on 09/01/2020 8:51 AM

Posted By DaveP8 on 08/31/2020 4:56 PM
If your state law allows it, I'd strongly recommend changing the approval requirement for future amendments from 60% (or whatever yours is currently) of total homeowners to 60% of those that submit ballots. We recently attempted the same as what you are doing and got 90% approval of those that voted. Unfortunately, only 30% of homeowners returned their ballot and we fell short of the needed 67% approval of total homeowners by around 85 votes. If people don't care enough to return a ballot, then that should not count as a "no" vote.

The reason for such a amount (51%, 2/3rds, etc) is to assure a "small number do not control. In you example 30% returned a ballot so you are say it should be 60% of the 30% or 18% of total owners. NFW.

To change something, let us say 51% required, says 51% have to vote Yes. No votes or not returned ballots do not matter if 51% say Yes, it happens. It less than 51% say Yes, it does not happen.

To play devil's advocate even further, many state legislators who drafted HOA and condo laws felt that an association's CC&Rs should not be subject to whims or the latest fashions in thinking. There should be a serious, substantial reason for amending them, and the changes should reflect the wishes of a sizeable portion of the membership since they are all bound by the terms of these CC&Rs. (After all, consent to the terms of the CC&Rs is the legal foundation for the board to enforce them.)

With low barriers to approval, you could make a good argument that a small change in the composition of the membership due to home sales would be enough to change the outcome of a vote. I'm not sure that's a good idea.

(For what it's worth, we require 75% of the membership to vote Yes to approve an amendment, and 25% voting No means no dice.)

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Kathy

You said: (For what it's worth, we require 75% of the membership to vote Yes to approve an amendment, and 25% voting No means no dice.)

Are you sure? this means the NO votes go against the YES votes. This is not common. What is common is that it takes 75% saying YES, regardless of the NO votes, to approve a change. We only count YES votes.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Thanks, John ... I don't understand, either.

If 75% say yes, then, unless there is a TIE (and the language is appropriately written), then there cannot be 25% voting no. There could be a tie.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By JohnC46 on 09/01/2020 11:22 AM
Kathy

You said: (For what it's worth, we require 75% of the membership to vote Yes to approve an amendment, and 25% voting No means no dice.)

Are you sure? this means the NO votes go against the YES votes. This is not common. What is common is that it takes 75% saying YES, regardless of the NO votes, to approve a change. We only count YES votes.

I wasn't clear. The Nos don't count against the Yes votes. What happens is that when you have either 75% Yes -or- 25% No, the voting stops because you have a clear decision (if you have 25% Nos, you can't possibly reach 75% Yes even if the remaining non-voters finally did so). The voting remains open until you achieve one or the other, or it becomes clear that we will never achieve a clear decision. We still have one amendment that neither passed nor failed, although we'd have to ask our attorney if we want to retry it. I expect we'd have to start over from scratch on that one.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By JohnC46 on 09/01/2020 11:22 AM
Kathy

You said: (For what it's worth, we require 75% of the membership to vote Yes to approve an amendment, and 25% voting No means no dice.)

Are you sure? this means the NO votes go against the YES votes. This is not common. What is common is that it takes 75% saying YES, regardless of the NO votes, to approve a change. We only count YES votes.

I wasn't clear. The Nos don't count against the Yes votes. What happens is that when you have either 75% Yes -or- 25% No, the voting stops because you have a clear decision (if you have 25% Nos, you can't possibly reach 75% Yes even if the remaining non-voters finally did so). The voting remains open until you achieve one or the other, or it becomes clear that we will never achieve a clear decision. We still have one amendment that neither passed nor failed, although we'd have to ask our attorney if we want to retry it. I expect we'd have to start over from scratch on that one.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Cath

I get it now. Your are saying if you get 26% NO's, you know it will not pass so why even count the rest of the votes. I would count them to see where it stand.

DaveP8 (Oklahoma)
Posts: 47

Posted:

Quote:

Posted By JohnC46 on 09/01/2020 8:51 AM

Posted By DaveP8 on 08/31/2020 4:56 PM
If your state law allows it, I'd strongly recommend changing the approval requirement for future amendments from 60% (or whatever yours is currently) of total homeowners to 60% of those that submit ballots. We recently attempted the same as what you are doing and got 90% approval of those that voted. Unfortunately, only 30% of homeowners returned their ballot and we fell short of the needed 67% approval of total homeowners by around 85 votes. If people don't care enough to return a ballot, then that should not count as a "no" vote.

The reason for such a amount (51%, 2/3rds, etc) is to assure a "small number do not control. In you example 30% returned a ballot so you are say it should be 60% of the 30% or 18% of total owners. NFW.

To change something, let us say 51% required, says 51% have to vote Yes. No votes or not returned ballots do not matter if 51% say Yes, it happens. It less than 51% say Yes, it does not happen.

To clarify, we have 310 total homes. 60% is 186. We received 106 total votes. Of those 106, 95 voted in favor of the changes (90%). This shows me that the majority of people that actually care about the HOA were in favor of the changes. Apparently, over 200 homeowners did not care enough to submit a ballot and these really shouldn't be counted as "no" votes.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By DaveP8 on 09/01/2020 12:43 PM
<... snippage ...

To clarify, we have 310 total homes. 60% is 186. We received 106 total votes. Of those 106, 95 voted in favor of the changes (90%). This shows me that the majority of people that actually care about the HOA were in favor of the changes. Apparently, over 200 homeowners did not care enough to submit a ballot and these really shouldn't be counted as "no" votes.

This brings me back to one of my previous comments, and here is a different way to look at it.

Out of 310 homes, only 95 owners cared enough about the issue to vote in favor of it. It's hard to view that as a mandate.

In my view, 310 owners bought homes under the previous CC&Rs. The notion that 95 owners (30.6%) were able to change the property rights of the entire community doesn't sit right with me - especially since property rights are kind of sacrosanct.

If an amendment were approved with those sorts of numbers and I were one of the other 215 owners, I would think that it may be worth my while to challenge the results legally (pending a discussion with a lawyer to see if I'm barking up the wrong tree).

I believe this is why lawmakers made it difficult to have such a thing happen - and why we don't see more lawsuits challenging amendments. Their goal wasn't to make it easy to pass amendments, it was to make the process consist with the value our laws and courts put on property rights.

JohnT38 (South Carolina)
Posts: 1,631

Posted:

Quote:

Posted By CathyA3 on 09/01/2020 1:04 PM

Posted By DaveP8 on 09/01/2020 12:43 PM
<... snippage ...

To clarify, we have 310 total homes. 60% is 186. We received 106 total votes. Of those 106, 95 voted in favor of the changes (90%). This shows me that the majority of people that actually care about the HOA were in favor of the changes. Apparently, over 200 homeowners did not care enough to submit a ballot and these really shouldn't be counted as "no" votes.

This brings me back to one of my previous comments, and here is a different way to look at it.

Out of 310 homes, only 95 owners cared enough about the issue to vote in favor of it. It's hard to view that as a mandate.

In my view, 310 owners bought homes under the previous CC&Rs. The notion that 95 owners (30.6%) were able to change the property rights of the entire community doesn't sit right with me - especially since property rights are kind of sacrosanct.

If an amendment were approved with those sorts of numbers and I were one of the other 215 owners, I would think that it may be worth my while to challenge the results legally (pending a discussion with a lawyer to see if I'm barking up the wrong tree).

I believe this is why lawmakers made it difficult to have such a thing happen - and why we don't see more lawsuits challenging amendments. Their goal wasn't to make it easy to pass amendments, it was to make the process consist with the value our laws and courts put on property rights.

I respectfully disagree and have the opposite opinion. I'm basing this on the assumption that the board has gone out of their way to provide all the information needed in an easy to understand way and that voting is easy. Under these circumstances the homeowner has chosen to ignore how life in their community will be defined in the new docs and the most likely reason is apathy or laziness. (Generally speaking.) If they don't care then they forfeit their chance to have input and turn the power over to the homeowners that care. People who do not care should not hold back the progress that those who do care want to implement.

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By JohnC46 on 09/01/2020 8:51 AM
The reason for such a amount (51%, 2/3rds, etc) is to assure a "small number do not control. In you example 30% returned a ballot so you are say it should be 60% of the 30% or 18% of total owners. NFW.

We lowered the threshold for homeowner approval to "51% of those in attendance at a meeting where there's a quorum". Quorum is 30%, or 30 owners, so 16 votes in favor of any amendment (all 3 main governing documents) could potentially be enough to amend any of our documents that all 100 homeowners are subject to. That would require some effort, though, to deliberately set up a situation like that, and in 7 years we haven't had a problem with it (3 CC&R amendments in that time).

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By JohnT38 on 09/01/2020 2:33 PM

I respectfully disagree and have the opposite opinion. I'm basing this on the assumption that the board has gone out of their way to provide all the information needed in an easy to understand way and that voting is easy. Under these circumstances the homeowner has chosen to ignore how life in their community will be defined in the new docs and the most likely reason is apathy or laziness. (Generally speaking.) If they don't care then they forfeit their chance to have input and turn the power over to the homeowners that care.

I can appreciate, sort of, your judgement of the non-voting owners' as scummy people. But then what should one think of someone who thinks that non-voting owners justify ignoring the covenants?

If the issue being voted on is that important to a board, then the board will do a massive campaign to get out the vote.

All owners (voting and non-voting) knew the terms of the contract when they bought.

I agree with CathyA3's statements on why covenants are by design hard to change. I believe what she wrote represents a long-standing tenet of property law.

CathyA3 (Ohio)
Posts: 6,299

Posted:

I take John's last point. It would be interesting to hear what a lawyer has to say.

I did a quick Google search and didn't find much about legal challenges to amendments. The things I did find referred to HOA provisions that were unenforceable because the required amendment procedure wasn't followed, not because the procedure itself was considered flawed.

JohnT38 (South Carolina)
Posts: 1,631

Posted:

Quote:

Posted By AugustinD on 09/01/2020 2:53 PM

Posted By JohnT38 on 09/01/2020 2:33 PM

I respectfully disagree and have the opposite opinion. I'm basing this on the assumption that the board has gone out of their way to provide all the information needed in an easy to understand way and that voting is easy. Under these circumstances the homeowner has chosen to ignore how life in their community will be defined in the new docs and the most likely reason is apathy or laziness. (Generally speaking.) If they don't care then they forfeit their chance to have input and turn the power over to the homeowners that care.

I can appreciate, sort of, your judgement of the non-voting owners' as scummy people. But then what should one think of someone who thinks that non-voting owners justify ignoring the covenants?

If the issue being voted on is that important to a board, then the board will do a massive campaign to get out the vote.

All owners (voting and non-voting) knew the terms of the contract when they bought.

I agree with CathyA3's statements on why covenants are by design hard to change. I believe what she wrote represents a long-standing tenet of property law.

In no way was I implying that these are scummy people or offering a legal opinion. We've have residents here that are older and have plenty of money and they simply don't want to be bothered. I respect that as long as they don't hold the rest of the community back because of their apathy. We have other residents that really do have the mentality that it takes too much effort to process the information and think about it and so they simply bury their heads in the sand.(Personally I think this is the larger group where I live.) We have done a MASSIVE campaign and will be voting sometime in the next 6 months. Not a single person will be able to say that we didn't or that they had many opportunities to weigh in on the proposal.

The bottom line for me personally is who do I want making the major decisions for my community? The ones that have digested the information and made an informed decision or the ones that are apathetic for whatever reason and stayed silent? I'll take the first group every time. No vote, no voice.

AugustinD
Posts: 5,144

Posted:

JohnT38, I do hear you about the labor and at times, frustration of serving as a director. One is paid nothing for an enormous amount of labor; fairly persistent conflict; and having to goad people constantly to just read the darned covenants and anything the board sends out. It should not be too much to ask owners to take three minutes to show up and vote.

JohnT38 (South Carolina)
Posts: 1,631

Posted:

Quote:

Posted By AugustinD on 09/01/2020 3:33 PM
JohnT38, I do hear you about the labor and at times, frustration of serving as a director. One is paid nothing for an enormous amount of labor; fairly persistent conflict; and having to goad people constantly to just read the darned covenants and anything the board sends out. It should not be too much to ask owners to take three minutes to show up and vote.

You are right. My thoughts that I gave are actually based on my role as a homeowner and not a board member. However, I will be the first to admit that prior to serving on the board I simply didn't have a clue what an HOA really is and how it impacts the owners. Despite my background in business and the fact that I at least have an average IQ, I simply didn't get it. Before I bought my condo my 83 year old dad told me to ask for the finances, get the history of special assessments and see if any law suites were pending. I simply ignored him because I was ignorant. It ends up he was right. I bought into a community that was underfunded a couple of hundred thousand dollars, has a history of special assessments and one pending lawsuit. I'm happy to say that over the last 3 years we are building up our reserves at a fast pace, and the law suit was dismissed. We are making a lot of progress and slowly but surely educating homeowners and winning their trust.

My point is even reasonably smart people buy condos without any knowledge of what they are getting into when they sign the dotted line. I don't have the answer but I do believe educating the owners and the board members is where it starts.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By CathyA3 on 09/01/2020 1:04 PM

Posted By DaveP8 on 09/01/2020 12:43 PM
<... snippage ...

To clarify, we have 310 total homes. 60% is 186. We received 106 total votes. Of those 106, 95 voted in favor of the changes (90%). This shows me that the majority of people that actually care about the HOA were in favor of the changes. Apparently, over 200 homeowners did not care enough to submit a ballot and these really shouldn't be counted as "no" votes.

This brings me back to one of my previous comments, and here is a different way to look at it.

Out of 310 homes, only 95 owners cared enough about the issue to vote in favor of it. It's hard to view that as a mandate.

In my view, 310 owners bought homes under the previous CC&Rs. The notion that 95 owners (30.6%) were able to change the property rights of the entire community doesn't sit right with me - especially since property rights are kind of sacrosanct.

If an amendment were approved with those sorts of numbers and I were one of the other 215 owners, I would think that it may be worth my while to challenge the results legally (pending a discussion with a lawyer to see if I'm barking up the wrong tree).

I believe this is why lawmakers made it difficult to have such a thing happen - and why we don't see more lawsuits challenging amendments. Their goal wasn't to make it easy to pass amendments, it was to make the process consist with the value our laws and courts put on property rights.

I agree.