Meaning of "voting members"

RonM19 (Texas)
Posts: 41

Posted:

Our (Texas) property code sometimes refers to something needing approval by "2/3 of the voting members." I'm wondering how some of you translate this:

1. 2/3 of the members that are eligible to vote.

2. 2/3 of the members that actually voted.

Number 1, or Number 2?

I'm thinking #2. If it were #1, it would read, "2/3 of the members." But that's just my opinion.

Thanks!
Ron

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By RonM19 on 01/16/2021 8:12 AM
Our (Texas) property code sometimes refers to something needing approval by "2/3 of the voting members."

I do not see the phrase "voting members" anywhere in any of the Texas HOA/condo statutes.

RonM19 (Texas)
Posts: 41

Posted:

Quote:

Posted By AugustinD on 01/16/2021 8:25 AM

Posted By RonM19 on 01/16/2021 8:12 AM
Our (Texas) property code sometimes refers to something needing approval by "2/3 of the voting members."

I do not see the phrase "voting members" anywhere in any of the Texas HOA/condo statutes.

You're right, I apologize for the inaccuracy. It's "Voting property owners," not "voting members."

TPC 211.004 (b) states, "...two-thirds of the voting property owners..."

RonM19 (Texas)
Posts: 41

Posted:

Just in case anyone is interested, let me describe where I'm coming from with this question.

We have a very small subdivision with 33 lots and about 25 owners. Our current procedure for passing amendments requires 2/3 of the total votes available, allowing one vote per lot. So that's 23 votes needed to pass an amendment.

We have a sort of "inner cabal" of old-time lot owners who want total control of everything; they always vote together, and comprise 6 votes.

In addition, there are always 7-8 owners who don't vote. These tend to be people who don't live here - they live in other states, and own lots as investments or as possible retirement locales 5-10 years from now.

So... one of the inner cabal proposes an amendment (they are also on the board). They support it with their 6 votes. 8 people don't vote. So right there is 14 votes. The remaining 19 voters can vote UNANIMOUSLY against it, to no avail: the cabal, combined with the non-voters, has total control over amendments, because of their control over those 14 votes.

This is exactly what happened during our last amendment vote, and everybody was royally PO'ed. We all voted unanimously against the amendment, but were helpless against the stranglehold these people have over our subdivision.

In 211.004, TPC describes the process by which an HOA changes its procedures for voting on amendments. One requirement is that the proposed procedure be approved by "2/3 of the voting property owners." So that's why I'm asking this question.

Thanks for your help!

Ron

JohnC77 (California)
Posts: 562

Posted:

Voting Members would be those eligible to vote. If your CCRs have a provision to suspend a members voting rights that would be taken into consideration.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By RonM19 on 01/16/2021 9:25 AM

This is exactly what happened during our last amendment vote, and everybody was royally PO'ed. We all voted unanimously against the amendment, but were helpless against the stranglehold these people have over our subdivision.

-- For the sake of discussion, I will assume you are certain that TPC 211 applies to your HOA.

-- I would not characterize the situation as you do. Instead I would say that all who bought into this HOA agreed to the restrictions and agreed to the state statutes that apply to the HOA. If people choose to be upset because they cannot pass this particular amendment, then I think they should be upset with themselves, for failing to carefully review the restrictions and the state statutes prior to buying into the HOA. "A deal's a deal."

-- This minority is exercising its control as the law permits. In this case and many other cases, I support their right to do so. Remember, one day a majority of the owners may want to create or modify a procedure to amend restrictions that you do not like. Then you get to work with a minority to stop 2/3ds or less of the owners from doing what you do not want.

Quote:

In 211.004, TPC describes the process by which an HOA changes its procedures for voting on amendments. One requirement is that the proposed procedure be approved by "2/3 of the voting property owners." So that's why I'm asking this question.

211.004 (b) states:
"211 CREATION OR MODIFICATION OF PROCEDURE TO AMEND RESTRICTIONS.
211.004 (b) An amendment procedure submitted to a vote under Subsection (a) binds all property owners in the subdivision or the unit or parcel of the subdivision to which the procedure applies if more than two-thirds of the voting property owners vote in favor of the procedure."

In my opinion, and based on experience, "two-thirds of the voting property owners" means "two thirds of all owners who are eligible to vote."

RonM19 (Texas)
Posts: 41

Posted:

Quote:

Posted By AugustinD on 01/16/2021 10:21 AM

Posted By RonM19 on 01/16/2021 9:25 AM

This is exactly what happened during our last amendment vote, and everybody was royally PO'ed. We all voted unanimously against the amendment, but were helpless against the stranglehold these people have over our subdivision.

-- For the sake of discussion, I will assume you are certain that TPC 211 applies to your HOA.

-- I would not characterize the situation as you do. Instead I would say that all who bought into this HOA agreed to the restrictions and agreed to the state statutes that apply to the HOA. If people choose to be upset because they cannot pass this particular amendment, then I think they should be upset with themselves, for failing to carefully review the restrictions and the state statutes prior to buying into the HOA. "A deal's a deal."

You can hardly expect a new homebuyer to do an extensive, detailed study of state statutes. Good grief. While technically, as you state, they're within the rules, what's happening here is a couple of people taking advantage of the rules to create amendments that NOBODY in the community wants.

For example, a co-worker of mine had an HOA that was about to be murdered by the residents. There was a rule stating that weeds and grass in your front yard couldn't be over 8 inches, which is not unreasonable under most circumstances. A couple of times, however, an overnight rain would cause a couple of fast-growing weeds (wild onion, I think) to shoot up 12-15 inches in an other wise manicured lawn. The next morning, the HOA "rule police" would cruise around the neighborhood and give $75 fines when they saw one. Would you agree with an HOA doing something like that? After all, a deal's a deal.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By RonM19 on 01/16/2021 9:25 AM
Just in case anyone is interested, let me describe where I'm coming from with this question.

We have a very small subdivision with 33 lots and about 25 owners. Our current procedure for passing amendments requires 2/3 of the total votes available, allowing one vote per lot. So that's 23 votes needed to pass an amendment.

We have a sort of "inner cabal" of old-time lot owners who want total control of everything; they always vote together, and comprise 6 votes.

In addition, there are always 7-8 owners who don't vote. These tend to be people who don't live here - they live in other states, and own lots as investments or as possible retirement locales 5-10 years from now.

So... one of the inner cabal proposes an amendment (they are also on the board). They support it with their 6 votes. 8 people don't vote. So right there is 14 votes. The remaining 19 voters can vote UNANIMOUSLY against it, to no avail: the cabal, combined with the non-voters, has total control over amendments, because of their control over those 14 votes.

This is exactly what happened during our last amendment vote, and everybody was royally PO'ed. We all voted unanimously against the amendment, but were helpless against the stranglehold these people have over our subdivision.

In 211.004, TPC describes the process by which an HOA changes its procedures for voting on amendments. One requirement is that the proposed procedure be approved by "2/3 of the voting property owners." So that's why I'm asking this question.

Thanks for your help!

Ron

I don't think that amendment passed at all. In my experience, unless specified otherwise, voting remains open until you have 2/3 voting Yes (Amendment Passed) or 1/3 voting No (Amendment Failed), otherwise it is undecided.

If I understand correctly, you had 19 Nos plus 8 non-voters, so roughly 80% of the membership did not vote affirmatively to approve the amendment. Those non-voters are just over 24% of the membership, which is a pretty significant hurdle to overcome. In fact, those outside "the cabal" can effectively stop any amendment they're opposed to, the old timers just don't control enough of the votes.

RonM19 (Texas)
Posts: 41

Posted:

Quote:

Posted By CathyA3 on 01/17/2021 7:14 AM

Posted By RonM19 on 01/16/2021 9:25 AM
Just in case anyone is interested, let me describe where I'm coming from with this question.

We have a very small subdivision with 33 lots and about 25 owners. Our current procedure for passing amendments requires 2/3 of the total votes available, allowing one vote per lot. So that's 23 votes needed to pass an amendment.

We have a sort of "inner cabal" of old-time lot owners who want total control of everything; they always vote together, and comprise 6 votes.

In addition, there are always 7-8 owners who don't vote. These tend to be people who don't live here - they live in other states, and own lots as investments or as possible retirement locales 5-10 years from now.

So... one of the inner cabal proposes an amendment (they are also on the board). They support it with their 6 votes. 8 people don't vote. So right there is 14 votes. The remaining 19 voters can vote UNANIMOUSLY against it, to no avail: the cabal, combined with the non-voters, has total control over amendments, because of their control over those 14 votes.

This is exactly what happened during our last amendment vote, and everybody was royally PO'ed. We all voted unanimously against the amendment, but were helpless against the stranglehold these people have over our subdivision.

In 211.004, TPC describes the process by which an HOA changes its procedures for voting on amendments. One requirement is that the proposed procedure be approved by "2/3 of the voting property owners." So that's why I'm asking this question.

Thanks for your help!

Ron

I don't think that amendment passed at all. In my experience, unless specified otherwise, voting remains open until you have 2/3 voting Yes (Amendment Passed) or 1/3 voting No (Amendment Failed), otherwise it is undecided.

If I understand correctly, you had 19 Nos plus 8 non-voters, so roughly 80% of the membership did not vote affirmatively to approve the amendment. Those non-voters are just over 24% of the membership, which is a pretty significant hurdle to overcome. In fact, those outside "the cabal" can effectively stop any amendment they're opposed to, the old timers just don't control enough of the votes.

You're right... I think I was describing a situation that happened the other way around. The membership was unable to PASS an amendment they wanted, because the 2 old-timers and the non-voters eat up over 1/3 of the possible votes. So it's impossible for the membership to muster the 2/3 majority they need to pass something.

ND (PA)
Posts: 792

Posted:

While it may be difficult, it sounds like it may be worth the effort to try and engage the small group of non-voters, doing what is necessary to get them to vote for your side of whatever decision is being made. You can't change the ways of "the cabal", and without the necessary numbers, you can't change the documents. However, you can quite possibly shift things in your favor by gaining a few more votes on your side.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By RonM19 on 01/17/2021 6:47 AM

You can hardly expect a new homebuyer to do an extensive, detailed study of state statutes. Good grief.

I am telling you what will happen if push comes to shove; the dispute lands in court; and what a judge will say.

Do you think the courts will ignore what your covenants say? How about the state statutes? You're posting here off the top of your head. The experienced HOA people are telling you that the courts expect HOAs to follow their own covenants, and state and federal law.

Quote:

While technically, as you state, they're within the rules, what's happening here is a couple of people taking advantage of the rules to create amendments that NOBODY in the community wants.

RonM19, a couple of things:

-- Nationwide, the amendment procedures of covenants typically require a super-majority (2/3rds or 3/4s of all owners) to amend. It is extremely rare that amendments are authorized via a vote of a simple majority of all owners.

-- For centuries, covenants have been designed to be difficult to amend. I understand that this is largely so that people may rely on the covenants not to change and so they may feel secure on their land. Property rights are not supposed to change just because less than all owners of land think they should.

-- Why is it you think it's okay to disregard the covenant and state law on amending? When you argue this, you are saying that contractual terms count for nothing. You are saying that the terms of the contract are whatever you and a less-than-super-majority desire. But the contract is between all owners, not just some of the owners, and not just between a majority of owners. Your viewpoint throws out hundreds of years of contract law. The courts reject your viewpoint, and with a snarl.

I think your "good grief" snarkiness is out of line. You came to this forum for information. You may not like this information. Maybe you want to be angry at the messenger. But this will not change the law.

SheliaH (Indiana)
Posts: 6,964

Posted:

Start with your documents (the ones you signed when you bought your home) - what do THEY say? That portion of the state law may or may not apply to your community, depending on what the effective date is (most people fail to read that part). For example, if it says something like the law will apply to HOAs established on or after X date, and yours is already 5 years old, that part of the law doesn't apply. It's helpful to know, but again, you really need to read your documents first.

In some cases, the documents can supersede state or local law, depending on the subject, which is why I always suggest asking a private attorney if you really want to know because most of us aren't attorneys and it's not a good idea to get legal advice from the Internet. Besides, what's true in your state may be the opposite in mine - or not addressed at all.

Now, all of that said (and because you don't quote YOUR documents), when I hear 2/3rds of voting members, I think 2/3s of the homeowners have to vote to approve amendments. If your community has 33 homes, one vote per home, you need at least 25 (I rounded up) to vote in favor. As I think I said in another post of yours, not voting is just that - if a homeowner or a dozen didn't cast a vote at all, you can't assume they approve or disprove the amendment. For document changes, it's always a good idea to get as many people as possible to vote one way or another, then compare the figures to see if you hit that 25 homeowner threshold. If everyone votes no or refuses to vote at all, the amendment fails.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

BillH10 (Texas)
Posts: 1,217

Posted:

Ron

Are you certain your Association falls under Section 211 of the property code? It applies only to defined associations in SE area of the state (the Houston area I believe).

Otherwise, you should be looking at Section 209 for homeowners associations in general.

RonM19 (Texas)
Posts: 41

Posted:

Quote:

Posted By BillH10 on 01/19/2021 10:05 AM
Ron

Are you certain your Association falls under Section 211 of the property code? It applies only to defined associations in SE area of the state (the Houston area I believe).

Otherwise, you should be looking at Section 209 for homeowners associations in general.

If it's not too much trouble, can you give me a cite indicating that 211 is only for associations in the SE area of the state? I can't find anything of that nature.

Again..... 211.004 delineates state requirements for changing an amendment PROCEDURE. It is NOT about making an amendment.

I sincerely appreciate all the replies.

BillH10 (Texas)
Posts: 1,217

Posted:

Ron, sure

https://statutes.capitol.texas.gov/Docs/PR/htm/PR.211.htm

4. "Residential real estate subdivision" or "subdivision" means all land encompassed within one or more maps or plats of land that is divided into two or more parts if:

(A) the maps or plats cover land all or part of which is not located within a municipality and:

(i) for a county with a population of less than 65,000, is not located within the extraterritorial jurisdiction of a municipality;

(ii) for a county with a population of at least 65,000 and less than 135,000, is located wholly within the extraterritorial jurisdiction of a municipality; or

(iii) for a county that borders Lake Buchanan and has a population of at least 18,500 and less than 19,500, is located wholly within the extraterritorial jurisdiction of a municipality;

If your association does not fall under any of the definitions in 4 (A) (i) or (ii) or (iii), you should be looking at Section 209 of the property code or other applicable codes and statutes.

Your documents should define the terminology very closely regarding what percentage of which group is required to approve which actions.

Where are you located? If you are in the DFW Metroplex, Section 211 cannot possibly apply if you are in Dallas, Collin, Tarrant, or Denton counties--all three have populations greater than 135,000.

BillH10 (Texas)
Posts: 1,217

Posted:

Sorry . . .cannot count this afternoon: all 4 counties have populations in excess of 135,000

JohnC46 (South Carolina)
Posts: 14,265

Posted:

The loudest complainers will be a small, but vocal minority that have not set foot into electronic communication. Do not drag down all others to their level.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By JohnC46 on 01/21/2021 2:36 PM
The loudest complainers will be a small, but vocal minority that have not set foot into electronic communication. Do not drag down all others to their level.

OOPS. Wrong subject.

RonM19 (Texas)
Posts: 41

Posted:

Quote:

Posted By BillH10 on 01/21/2021 12:19 PM
Ron, sure

https://statutes.capitol.texas.gov/Docs/PR/htm/PR.211.htm

4. "Residential real estate subdivision" or "subdivision" means all land encompassed within one or more maps or plats of land that is divided into two or more parts if:

(A) the maps or plats cover land all or part of which is not located within a municipality and:

(i) for a county with a population of less than 65,000, is not located within the extraterritorial jurisdiction of a municipality;

(ii) for a county with a population of at least 65,000 and less than 135,000, is located wholly within the extraterritorial jurisdiction of a municipality; or

(iii) for a county that borders Lake Buchanan and has a population of at least 18,500 and less than 19,500, is located wholly within the extraterritorial jurisdiction of a municipality;

If your association does not fall under any of the definitions in 4 (A) (i) or (ii) or (iii), you should be looking at Section 209 of the property code or other applicable codes and statutes.

Your documents should define the terminology very closely regarding what percentage of which group is required to approve which actions.

Where are you located? If you are in the DFW Metroplex, Section 211 cannot possibly apply if you are in Dallas, Collin, Tarrant, or Denton counties--all three have populations greater than 135,000.

Sorry, I still don't get it. How does this specific the SE part of the state? Our subdivision falls under 4(A)(i). We're in Kendall County, about 12 miles NW of Boerne, not in any city limits.

BillH10 (Texas)
Posts: 1,217

Posted:

Ron, that one is on me--I was told the areas which contained associations which fall under Section 211 were in the SE part of the state and did not check it out.

Regardless, the important thing is you are using the correct section of the property code.