California CCR updates through court order

Started by DavidP29 • 30 replies • 402 views

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DavidP29 (California)
Posts: 100

Posted:

Does anyone have experience with getting CCRs updated thigh the court via the process outlined in the Davis-Stirling Act?

We sent out new CCRs back in May 2020 for homeowner vote and finally opened the ballots last week. It took us this long to get over 75% of 72 homeowners to send back.

Our current CCRs require 75% owner approval for any changes. The results of the vote was 63% approval. Not enough to pass and meet the 75% requirement.

At this point we can start all over or try through the court.

Thoughts?

MelissaP1 (Alabama)
Posts: 13,836

Posted:

I don't get it? Our HOA took about 2 years to get the approvals. We needed 75% for Aricles/By-laws and 90% for CC&R's. We had our lawyer file the paperwork once we got all the required signatures. There was a filing fee involved of like $750. The other expenses were producing copies and lawyer fees.

I am not sure why need a court order when just get a lawyer to file it for you.

Former HOA President

SheliaH (Indiana)
Posts: 6,964

Posted:

We haven't done it, but I think this might happen if the association can prove it made a good faith effort to get homeowners to at least respond to the vote - that is, not enough people bothered to vote at all. This isn't the same as not getting enough people to vote in favor of the amendments.

In this case, only 63% of the homeowners who did vote said yes, so the proposal has failed. I think it would be very difficult for you to get a court to grant approval anyway - you'd probably have to show WHY these amendments are necessary. If you don't have the votes, it may be rest really don't care, the board hasn't done its job in explaining the reasons - or people don't like the proposals and you'll have to start over.

I'd suggest starting over, perhaps selecting the proposals that are more essential, such as establishing rules regarding board member recall or allowing for virtual meetings and electronic voting. Sometimes boards make the mistake of throwing a bunch of proposals in front of people and it's too overwhelming to review all of them. Not to mention some people refuse to read anything (which is why they fall for so much BS).

Review the process from the beginning to determine why people voted it down - starting with polling the people who voted against it. Perhaps they moved into the community around the same time the proposals were sent to the homeowners and the previous homeowners talked so much against it, they were inclined to vote against it.

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

MaxB4
Posts: 3,513

Posted:

Quote:

Posted By MelissaP1 on 06/24/2022 4:25 AM
I don't get it? Our HOA took about 2 years to get the approvals. We needed 75% for Aricles/By-laws and 90% for CC&R's. We had our lawyer file the paperwork once we got all the required signatures. There was a filing fee involved of like $750. The other expenses were producing copies and lawyer fees.

I am not sure why need a court order when just get a lawyer to file it for you.

If you don't know how the process works in California, why are you even commenting?

KerryL1 (California)
Posts: 14,550

Posted:

CA has specific steps and criteria for the courts to approve. Sounds like you've reviewed Civ. 4275, David. See Davis-stirling.com, "Index, CC&Rs, Court Petition to Approve CC&Rs or some such title.

You might know that you'll have a good chance for court approval if over 50% voted yes. So that's in your favor. You also need to show the various get-out-the-vote methods you used. you need to show that you mad a strong effort. Personal mailers, door-to door canvassing? One or more Town Halls?

Our HOA attorney petitioned the court a couple of weeks ago to undergo this process for our high rise condo's 20 y.o. CC&Rs. Part of our plea is based on our 25% absentee owners and maybe 13% part-time owner occupants. For the latter, those who hadn't voted during the first mailing rec'd a 2nd complete mailing with a stamped return envelope. We did get a nice surge following that action. It also included a 2-page summary of all the important changes. Our efforts included what I mentioned above and weekly drawings.

Because we're sorta complicated, we have three special benefits areas with some covenants only for them--and including a Commercial area that has many of its own restrictions, etc. (e.g., No strip clubs!), our CC&Rs are 73 pages + 2 Exhibits and and a responsiblity chart: who paints/repairs/replaces what?

We sent out ballots at the very end of last year and tallied them in late May. We needed 143 affirmative votes and received 136! There were 17 no votes. So we got about 63% affirmative but needed 67%! Assuming no owner contests our petition, the estimated cost is $2-3,000.

So, David, if your Board worked really hard to get out the vote over that long period of time, and you can prove it, I think you're in good shape. If campaigning was so-so AND you have a lot of "no" votes, it seems riskier. I hope you had your attorney write and vet your revisions or rewrite. If an experienced HOA attorney, s/he should be able to advise you whether to proceed to court petition and how much you'll need to pay,

(Melissa has mentioned this numerous times, which was done many years ago (when, Melissa?). The actual "process" sounded like none that would be legal in any state.)

MaxB4
Posts: 3,513

Posted:

I have read a few petitions granting such permission and find it amazing that the approval percentage in their new docs are the same percentage they now can't achieve be the courts don't even bother to question that mentality.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

I am commenting because I went through this process when we updated our CC&R's. Did you?

Former HOA President

MaxB4
Posts: 3,513

Posted:

Quote:

Posted By MelissaP1 on 06/24/2022 3:55 PM
I am commenting because I went through this process when we updated our CC&R's. Did you?

What you're referring to is having the approval already done. The OP doesn't have the required votes and asking the courts to intervene, which in my opinion is BS. You knew the rules going in. No, i haven't ever had to ask the courts to intervene as i have always gotten them passed the first time.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

I read it that they did get the approval vote through but it has taken 2 years to get it...

Former HOA President

MaxB4
Posts: 3,513

Posted:

Quote:

Never, ever give a volunteer a blank check to do whatever they feel like doing.

DavidP29 (California)
Posts: 100

Posted:

Quote:

Posted By KerryL1 on 06/24/2022 2:18 PM
CA has specific steps and criteria for the courts to approve. Sounds like you've reviewed Civ. 4275, David. See Davis-stirling.com, "Index, CC&Rs, Court Petition to Approve CC&Rs or some such title.

You might know that you'll have a good chance for court approval if over 50% voted yes. So that's in your favor. You also need to show the various get-out-the-vote methods you used. you need to show that you mad a strong effort. Personal mailers, door-to door canvassing? One or more Town Halls?

Our HOA attorney petitioned the court a couple of weeks ago to undergo this process for our high rise condo's 20 y.o. CC&Rs. Part of our plea is based on our 25% absentee owners and maybe 13% part-time owner occupants. For the latter, those who hadn't voted during the first mailing rec'd a 2nd complete mailing with a stamped return envelope. We did get a nice surge following that action. It also included a 2-page summary of all the important changes. Our efforts included what I mentioned above and weekly drawings.

Because we're sorta complicated, we have three special benefits areas with some covenants only for them--and including a Commercial area that has many of its own restrictions, etc. (e.g., No strip clubs!), our CC&Rs are 73 pages + 2 Exhibits and and a responsiblity chart: who paints/repairs/replaces what?

We sent out ballots at the very end of last year and tallied them in late May. We needed 143 affirmative votes and received 136! There were 17 no votes. So we got about 63% affirmative but needed 67%! Assuming no owner contests our petition, the estimated cost is $2-3,000.

So, David, if your Board worked really hard to get out the vote over that long period of time, and you can prove it, I think you're in good shape. If campaigning was so-so AND you have a lot of "no" votes, it seems riskier. I hope you had your attorney write and vet your revisions or rewrite. If an experienced HOA attorney, s/he should be able to advise you whether to proceed to court petition and how much you'll need to pay,

(Melissa has mentioned this numerous times, which was done many years ago (when, Melissa?). The actual "process" sounded like none that would be legal in any state.)

Thank you. If you don't mind DM your attorney info?

We do have one but he seems expensive and is slow to respond all the time.

The issues we have is the wall in insurance of our current CCRs and rental cap.

I am putting evidence together now on all the actions we did to get ppl to vote.

DavidP29 (California)
Posts: 100

Posted:

Quote:

Posted By MaxB4 on 06/24/2022 4:24 PM

Posted By MelissaP1 on 06/24/2022 3:55 PM
I am commenting because I went through this process when we updated our CC&R's. Did you?

We have one board member who doesn't want to get rid of cumulative voting and has been telling ppl not to vote.

MaxB4
Posts: 3,513

Posted:

Cumulative voting is in the bylaws, not the CCRs.

KerryL1 (California)
Posts: 14,550

Posted:

It sounds like you're a condo HOA too? How many/what % voted no? Are there elevators, etc.?

Our walls-in insurance was put in place by our developer & we've kept it. To add owners' possessions to the HOA policy when damage is caused by a common area leak (NOT due to negligence, which the HOA would cover) was going to be really expensive. How is your amended CC&R section on that different than your current ones?

Are you aware that CA has a new rental legislation and HOAs needed to act by July 1 of 2022? Since you amended your CC&Rs so long ago, I'm now worried that they don't comply. Can you cite exactly what your amended CC&Rs say about rentals?

If you'll give me an email address and also tell me where you live, I could give you more details & possibly an HOA attorney rec. Did your current HOA attorney vet your amended CC&Rs or do a lot of the writing? Di he ad vise you to petition the court. Our petition was done by our HOA attorney.

Max can be helpful, but has fizzled lately and only seems to lurk and hurl an occasional brilliant dart. Despite his opinion about court approval for CC&Rs, the fact is it's legal in CA due to some legislators realizing how hard it is to get 67, 75 or even higher % approval. Our amended doc will say a simple majority to amend. With our large % of landlord and part-time owner-occupants and for those in neighboring condos, it's almost necessary and many around us have gone through the courts successfully.

Max likes to break his arm patting himself on the back about getting "his" HOAs to amend their CC&Rs, but he forgets to mention that the % of landlords in most is a lot less than in urban condos

MaxB4
Posts: 3,513

Posted:

No Kerry I didn't fizzle, I am on a cruise to Alaska and don't always have access to internet.

The truth is I didn't fart around for 5 years getting restated governing docs together. I also had a game plan BEFORE starting work on them. I worked with higher percentage of landlords than you, do what excuse did you make up?

MaxB4
Posts: 3,513

Posted:

KerryL1 (California)
Posts: 14,550

Posted:

So, David, I just received the Petition to the Court by USPS that our legal counsel prepared and the whole package is 20 pages + 2 pages of cover letter to owners. In the 20 pages are our attorney's points and evidence and then there are several pages of almost the same attested to by our board prez. The petition doesn't include exhibits which would be our various letters, flyers, etc. it's slated for Aug. 5.

I'm afraid that no matter what legal counsel you get to craft the petition, exhibits, etc. it will be expensive. It definitely will take an attorney who's written these previously.

Max previously boasted how he went door to door to get ballots returned for CC&Rs approval. But, if he really had even one detached homes HOA (he doesn't do condos, he's said) with 25% rentals and 13% p-t occupants, much more needs to be done than door-knocking for obvious reasons. The owners are there. But he's never mentioned mailers. It'd be great if he'd give some advice to David.

MaxB4
Posts: 3,513

Posted:

Kerry

Please don't ever think you're smarter thn i m, you have much to learn. I said i went door to door at where i lived. 40% of my properties are condo, and some we had amended had rentals as high as 50%.

DavidP29 (California)
Posts: 100

Posted:

Quote:

Posted By KerryL1 on 06/24/2022 7:12 PM
So, David, I just received the Petition to the Court by USPS that our legal counsel prepared and the whole package is 20 pages + 2 pages of cover letter to owners. In the 20 pages are our attorney's points and evidence and then there are several pages of almost the same attested to by our board prez. The petition doesn't include exhibits which would be our various letters, flyers, etc. it's slated for Aug. 5.

I'm afraid that no matter what legal counsel you get to craft the petition, exhibits, etc. it will be expensive. It definitely will take an attorney who's written these previously.

Max previously boasted how he went door to door to get ballots returned for CC&Rs approval. But, if he really had even one detached homes HOA (he doesn't do condos, he's said) with 25% rentals and 13% p-t occupants, much more needs to be done than door-knocking for obvious reasons. The owners are there. But he's never mentioned mailers. It'd be great if he'd give some advice to David.

DavidP29 (California)
Posts: 100

Posted:

Quote:

So I can't figure out where on here to email you directly. Lol

KerryL1 (California)
Posts: 14,550

Posted:

Just reply here your email addy, DavidP, and I'll get back to you the same day.

DavidP29 (California)
Posts: 100

Posted:

Quote:

Posted By KerryL1 on 06/25/2022 6:19 PM
Just reply here your email addy, DavidP, and I'll get back to you the same day.

Thank you.

Dskeers at gmail

DavidP29 (California)
Posts: 100

Posted:

Quote:

Posted By KerryL1 on 06/24/2022 6:01 PM
It sounds like you're a condo HOA too? How many/what % voted no? Are there elevators, etc.?

Our walls-in insurance was put in place by our developer & we've kept it. To add owners' possessions to the HOA policy when damage is caused by a common area leak (NOT due to negligence, which the HOA would cover) was going to be really expensive. How is your amended CC&R section on that different than your current ones?

Are you aware that CA has a new rental legislation and HOAs needed to act by July 1 of 2022? Since you amended your CC&Rs so long ago, I'm now worried that they don't comply. Can you cite exactly what your amended CC&Rs say about rentals?

If you'll give me an email address and also tell me where you live, I could give you more details & possibly an HOA attorney rec. Did your current HOA attorney vet your amended CC&Rs or do a lot of the writing? Di he ad vise you to petition the court. Our petition was done by our HOA attorney.

Max can be helpful, but has fizzled lately and only seems to lurk and hurl an occasional brilliant dart. Despite his opinion about court approval for CC&Rs, the fact is it's legal in CA due to some legislators realizing how hard it is to get 67, 75 or even higher % approval. Our amended doc will say a simple majority to amend. With our large % of landlord and part-time owner-occupants and for those in neighboring condos, it's almost necessary and many around us have gone through the courts successfully.

Max likes to break his arm patting himself on the back about getting "his" HOAs to amend their CC&Rs, but he forgets to mention that the % of landlords in most is a lot less than in urban condos

We have 72 units. 56 returned
45 yes votes
7 no votes
4 incorrect ballots

We have 2 elevators, no rent cap in current CCRs and Bylaws.

Current CCR/By Laws are from 1970s and require 75% for approval. New ones require simple majority.

Our current lawyer helped draft. He gave us basic information but it has been 2 weeks and still waiting for response.

MaxB4
Posts: 3,513

Posted:

David,

Based on the numbers you wrote, you could spend the additional dollars and possibly have a court rule in the association's favor, but then, they have to ask themselevs, are the changes worth the added expense? I believe the legislatures should update civil code so that the amendment/restatement procdure and percentage are equal across the board. I have seen too many petitions where the associations and/or their legal counsel have lied through their teeth on the documemntation for the petition.

Over the years I have worked on about ten restated CCRs/Bylaws. Everyone passed within three months of the initial vote. I wouldn't ever touch one that would take years to pass. Always had a game plan to pass before I even started. In your instance, if you started the vote in 2020 and someone moved in 2021, would their vote still count?

Posters here will tell you that amending CCRs should be more difficult because of its contract implications, unless of course it's their own they are trying to change, then, of course, that's different.

I don't try and answer all posts on this forum. Quite frankly, some are just plain, well, questionable in nature, especially by some board members. I will generally chime in on California, as that is well I am from and do business. I don't know a lot about retention ponds, but from what I understand, they take water, and right now, California doesn't have an abundance of that.

KerryL1 (California)
Posts: 14,550

Posted:

Ok, David, I hope to email you later today. I hope you've read the Davis-stirling.com citation I gave you. Your Yes v. no votes look good. The judge does want to see more that 50% yes and you have 63%, I'd say that's good. You also have a small % of no votes.

But I just caught that an Owner in your assn. objects to eliminating cumulative voting (even tho' every attorney advises it including ours) But that's usually found in the bylaws. Are your Bylaws somehow part of your CC&Rs? I do think the age of your CC&Rs will help you. Ours are from 2000 and in th petition, our attorney points out how much CA statutes have changed since then. Week, in 1970, there was no Davis-sticking Open Meeting Act.

It's a shame Max know such sleazy others who've shown him their dishonest petitions written by their dishonest attorney. I think he needs new acquaintances. Otherwise, I'm sure you & your attorney will be honest just as we & our attorney are in our petition.

I'll now send an email.

KerryL1 (California)
Posts: 14,550

Posted:

Ok, David, I hope to email you later today. I hope you've read the Davis-stirling.com citation I gave you. Your Yes v. no votes look good. The judge does want to see more that 50% yes and you have 63%, I'd say that's good. You also have a small % of no votes.

But I just caught that an Owner in your assn. objects to eliminating cumulative voting (even tho' every attorney advises it including ours) But that's usually found in the bylaws. Are your Bylaws somehow part of your CC&Rs? I do think the age of your CC&Rs will help you. Ours are from 2000 and in the petition, our attorney points out how much CA statutes have changed since then. In 1970, there was no Davis-sticking Open Meeting Act.

It's a shame Max knows such sleazy others who've shown him their dishonest petitions written by their dishonest attorneys. I think he needs new acquaintances. I'm sure you & your attorney will be honest just as we & our attorney are in our petition. Yes, keep gathering copies of anything sent to wonks urging them to vote. In the petition, those are "Exhibits."

I'll now send an email.

MaxB4
Posts: 3,513

Posted:

Quote:

Posted By KerryL1 on 06/29/2022 5:53 PM
Ok, David, I hope to email you later today. I hope you've read the Davis-stirling.com citation I gave you. Your Yes v. no votes look good. The judge does want to see more that 50% yes and you have 63%, I'd say that's good. You also have a small % of no votes.

But I just caught that an Owner in your assn. objects to eliminating cumulative voting (even tho' every attorney advises it including ours) But that's usually found in the bylaws. Are your Bylaws somehow part of your CC&Rs? I do think the age of your CC&Rs will help you. Ours are from 2000 and in the petition, our attorney points out how much CA statutes have changed since then. In 1970, there was no Davis-sticking Open Meeting Act.

It's a shame Max knows such sleazy others who've shown him their dishonest petitions written by their dishonest attorneys. I think he needs new acquaintances. I'm sure you & your attorney will be honest just as we & our attorney are in our petition. Yes, keep gathering copies of anything sent to wonks urging them to vote. In the petition, those are "Exhibits."

I'll now send an email.

In 2022, there still is NO Davis-sticking Open Meeting Act.And you were the Secretary. You know there is internet spelling check you could install. And stop with your snarky bullshit attacks, it is getting really frigging old!

KerryL1 (California)
Posts: 14,550

Posted:

Sorry, David, of course I mean "Owners."

MaxB4
Posts: 3,513

Posted:

One of the issues required by Civil Code §4275 is the requirement of voting by mortgagees. It is in your CCRs and it is part of §4275. How did you comply with sending ballots out to all 200+ mortgagee holders, provided that all do have mortgages?

I also worked for a law firm that fudged numbers, knowing a court is not going to acknowledge the slight of hand. For instance a HOA of 200 condos and 80 voted with 67 voting yes. They would put 84% voted yes, when the number was really 34%. Sorry, there are court cases that have been decided with blantently incorrect information.

Of the 10 that I have seen the petitions for, 9 came from this forum, so they were your acquaintances also. The other is a current customer done 20 years before I took over.

KerryL1 (California)
Posts: 14,550

Posted:

I do not care what horrors you've seen in your sordid world, Max. And I do not see how it helps the O.P.

MaxB4
Posts: 3,513

Posted:

I think I will refer to you as "Melissa of the West".

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