Improperly Amended CCRs

Insufficient information to answer your question, and most of us here are not lawyers (specifically we're not your lawyer)s. Here's what I think you should check:

* If your CC&Rs don't specify a process for amendment, then check your state statutes. Do you have any covering community associations of your type? If not, look at corporate statutes, particularly any dealing with non-profits.

* Quote: Community is advised that 100% assent to amendment is required in these circumstances, however 25 year old amendment exists. Question: who is doing the advising? Association attorney? Community manager? Board member who's been on the board since Year 0?

* In my state/community, we don't need to have a meeting to approve amendments - it's done by snail mail ballots. Our amendments require 75% approval. In other states it's as low as 67%, and I think someone once said that a simple majority would do it in his community. I'd also question the 100%. Per my CC&Rs, this is only required if we change the formula for determining assessments, or if we acquire/sell off comment area. For all other changes, the super-majority of 75% is enough.

* You'll have to consult with a lawyer for this, but there are precedents where if an entity (person or corporation) has followed a particular course of action for a number of years, that course of action is deemed to be "the law". In other words, the amendment may be considered to be approved just because you've done it that way for so long.

Long story short, consult with your own attorney to get a solid answer.

100% info was supplied by real estate attorney the community works with, based on case law.

We are working with an attorney. Just trying to think of as many things as possible, and from all sides.

It doesn't sound like this is the case here since you mentioned a "dramatic" change, but one kind of amendment that the board can approve without homeowner vote is one that brings the CC&Rs into compliance with current state laws and introduces no other changes beyond that. Such an amendment would still need to be recorded along with the original CC&Rs.

I'm glad you're working with a lawyer.

I was thinking about this earlier. What would I do if I were on the board of a community when we discovered that we'd been operating for years under some invalid CC&Rs? Here are the things I'd look at:

* What was the nature of the changes in the invalid amendment(s)?

* Were the changes positive, negative, or neutral? If negative, were the harms intangible or were they quantifiable? Can we put a dollar figure on any harms that the owners allegedly suffered as a result of the HOA following the provisions of the amendment(s)?

* Did the changes favor a particular subset of homeowners, or did they disadvantage another subset? Is the disadvantaged subset a protected class as defined by Fair Housing laws?

* Has the HOA been able to easily enforce the provisions in the amendment(s), or have homeowners periodically challenged them? What were the results of the challenges? Has the HOA spent money on enforcing these provisions, and how much is it?

* What would be benefits and costs of declaring the amendment(s) invalid? These would include the time, effort, and legal and other costs of restating the CC&Rs, getting them approved, and the newer version recorded. What are the chances that the restated CC&Rs would not be approved? Keep in mind that the cost of an amendment that fails is pretty much identical to the cost of one that passes (the recording fee is probably the only difference).

What would make me lean toward fixing this would be 1) identifiable, quantifiable and ongoing harm resulting from following the invalid CC&Rs, 2) the possibility of Fair Housing issues, and 3) the likelihood that the membership would vote in favor of corrective action. Without these three things, I'd question whether "fixing the problem" is in the best interests of the association, especially if the community has been operating well all this time.