Help interpreting this bylaw

DavidG45 (Delaware)
Posts: 994

Posted:

“Rules and regulations concerning the operations and use of the Common Elements may be promulgated and amended by the Executive Board, provided that such Rules and Regulations are not contrary to or inconsistent with the Act, the Declaration, or these Bylaws. Copies of the Rules and Regulations shall be furnished by the Executive Board to each Lot Owner prior to the time when the same shall become effective. Lot Owners may amend or defeat a Rule or Regulation if twenty percent (20%) of the Lot Owners petition the Executive Board at least thirty (30) days prior to the next scheduled membership meeting. Rules and Regulations are deemed approved unless modified or defeated by a vote of sixty percent (60%) of the Lot Owners. “

So…can 20% defeat a rule, or 60?

WendyM5 (North Carolina)
Posts: 1,522

Posted:

20% because the statements conflict each other and in general the law will favor the number that is more favorable to the litigant.
What exactly is the issue?

vis ta vie

DavidG45 (Delaware)
Posts: 994

Posted:

Quote:

Posted By WendyM5 on 04/14/2023 5:45 PM
20% because the statements conflict each other and in general the law will favor the number that is more favorable to the litigant.
What exactly is the issue?

The issue is that the board and residents aren’t sure what it means.

DavidG45 (Delaware)
Posts: 994

Posted:

Quote:

Posted By WendyM5 on 04/14/2023 5:45 PM
20% because the statements conflict each other and in general the law will favor the number that is more favorable to the litigant.
What exactly is the issue?

The issue is that the board and residents aren’t sure what it means.

MaxB4
Posts: 3,513

Posted:

20% to petition, 60% to defeat.

WendyM5 (North Carolina)
Posts: 1,522

Posted:

Quote:

Posted By MaxB4 on 04/14/2023 6:12 PM
20% to petition, 60% to defeat.

yeah that's what it was probably meant to say, however that is not what it says.

pe·ti·tion: a formal written request, typically one signed by many people, appealing to authority with respect to a particular cause.

it says the mere act of petitioning is enough to amend or overturn the rule.

vis ta vie

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By DavidG45 on 04/14/2023 5:40 PM
“Rules and regulations concerning the operations and use of the Common Elements may be promulgated and amended by the Executive Board, provided that such Rules and Regulations are not contrary to or inconsistent with the Act, the Declaration, or these Bylaws. Copies of the Rules and Regulations shall be furnished by the Executive Board to each Lot Owner prior to the time when the same shall become effective. Lot Owners may amend or defeat a Rule or Regulation if twenty percent (20%) of the Lot Owners petition the Executive Board at least thirty (30) days prior to the next scheduled membership meeting. Rules and Regulations are deemed approved unless modified or defeated by a vote of sixty percent (60%) of the Lot Owners. “

So…can 20% defeat a rule, or 60?

It takes 20% of the owners to petition for a vote on the new rules prior to the next annual meeting, and they must do so 30 days prior to the next annual meeting. If no vote is requested before then, the new rules are deemed to have been approved.

If a vote is held, then it takes 60% of the membership to modify or defeat the new rules as they are written. If only 59% vote "no", then the new rules are approved.

ElleN (Idaho)
Posts: 4,420

Posted:

"Petition" in HOA Declarations has always been used with reference to owners who want to get a Special Meeting of the membership scheduled.

I agree with CathyA3, except for one thing: The vote may happen at any scheduled meeting of the owners, be it a special meeting or the annual meeting.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By CathyA3 on 04/15/2023 4:24 AM

Posted By DavidG45 on 04/14/2023 5:40 PM
“Rules and regulations concerning the operations and use of the Common Elements may be promulgated and amended by the Executive Board, provided that such Rules and Regulations are not contrary to or inconsistent with the Act, the Declaration, or these Bylaws. Copies of the Rules and Regulations shall be furnished by the Executive Board to each Lot Owner prior to the time when the same shall become effective. Lot Owners may amend or defeat a Rule or Regulation if twenty percent (20%) of the Lot Owners petition the Executive Board at least thirty (30) days prior to the next scheduled membership meeting. Rules and Regulations are deemed approved unless modified or defeated by a vote of sixty percent (60%) of the Lot Owners. “

So…can 20% defeat a rule, or 60?

It takes 20% of the owners to petition for a vote on the new rules prior to the next annual meeting, and they must do so 30 days prior to the next annual meeting. If no vote is requested before then, the new rules are deemed to have been approved.

If a vote is held, then it takes 60% of the membership to modify or defeat the new rules as they are written. If only 59% vote "no", then the new rules are approved.

I agrre. 20% to call a meeting, 60% OF ALL OWNERS to modify or defeat the proposed rule(s).

SheliaH (Indiana)
Posts: 6,964

Posted:

What Cathy and John said - and why hasn't anyone run this by the association attorney?

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 WendyM5 on 04/15/2023 2:10 AM

Posted By MaxB4 on 04/14/2023 6:12 PM
20% to petition, 60% to defeat.

yeah that's what it was probably meant to say, however that is not what it says.

pe·ti·tion: a formal written request, typically one signed by many people, appealing to authority with respect to a particular cause.

it says the mere act of petitioning is enough to amend or overturn the rule.

WOW

WendyM5 (North Carolina)
Posts: 1,522

Posted:

Quote:

Posted By MaxB4 on 04/15/2023 9:55 AM

Posted By WendyM5 on 04/15/2023 2:10 AM

Posted By MaxB4 on 04/14/2023 6:12 PM
20% to petition, 60% to defeat.

yeah that's what it was probably meant to say, however that is not what it says.

pe·ti·tion: a formal written request, typically one signed by many people, appealing to authority with respect to a particular cause.

it says the mere act of petitioning is enough to amend or overturn the rule.

WOW

Yep that's what it says. Not gonna assume petition is to call a meeting like vast majority is doing. Who ever wrote this should be fired

vis ta vie

MaxB4
Posts: 3,513

Posted:

Quote:

Posted By WendyM5 on 04/15/2023 10:23 AM

Posted By MaxB4 on 04/15/2023 9:55 AM

Posted By WendyM5 on 04/15/2023 2:10 AM

Posted By MaxB4 on 04/14/2023 6:12 PM
20% to petition, 60% to defeat.

yeah that's what it was probably meant to say, however that is not what it says.

pe·ti·tion: a formal written request, typically one signed by many people, appealing to authority with respect to a particular cause.

it says the mere act of petitioning is enough to amend or overturn the rule.

WOW

Yep that's what it says. Not gonna assume petition is to call a meeting like vast majority is doing. Who ever wrote this should be fired

So, the 60% to reject means nothing to you?

WendyM5 (North Carolina)
Posts: 1,522

Posted:

Quote:

Posted By MaxB4 on 04/15/2023 10:33 AM

Posted By WendyM5 on 04/15/2023 10:23 AM

Posted By MaxB4 on 04/15/2023 9:55 AM

Posted By WendyM5 on 04/15/2023 2:10 AM

Posted By MaxB4 on 04/14/2023 6:12 PM
20% to petition, 60% to defeat.

yeah that's what it was probably meant to say, however that is not what it says.

pe·ti·tion: a formal written request, typically one signed by many people, appealing to authority with respect to a particular cause.

it says the mere act of petitioning is enough to amend or overturn the rule.

WOW

Yep that's what it says. Not gonna assume petition is to call a meeting like vast majority is doing. Who ever wrote this should be fired

So, the 60% to reject means nothing to you?

Name a single hoa court case where the judge decided to go with the higher measure? I can name 3 off the top of my head where judge went with the lower measure when the language was too vague.

And in all 3 the popcorn gallery assumed the hoa would win and they lost. Judges don't like it when lawyers can't write well.

vis ta vie

WendyM5 (North Carolina)
Posts: 1,522

Posted:

Quote:

Posted By SheliaH on 04/15/2023 9:45 AM
What Cathy and John said - and why hasn't anyone run this by the association attorney?

Because people can read and don't need to pay a lawyer to get their opinion when it could be wrong.
When something is poorly written judges usually go with the lower requirements.

vis ta vie

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By WendyM5 on 04/15/2023 12:05 PM

Name a single hoa court case where the judge decided to go with the higher measure? I can name 3 off the top of my head where judge went with the lower measure when the language was too vague.

When the language is vague or ambiguous, the courts first look to the overall document (the Declaration or Bylaws or both) to see if other language in the documents explains the meaning. If subsequently the language is truly vague or ambiguous, then I agree that interpretation is made against the author of the language (in this case, the HOA corporation).

Since you say you can name three cases off the top of your head where the judge went with the lower measure when the language is too vague, please go ahead and do so. I want to see if you know what you are talking about.

LaskaS (Texas)
Posts: 1,025

Posted:

max and johnc46, I agree.

it takes a petition signed by 20% of the owners and presented to the board at least 30 days before the next meeting .

the petition is to call for a vote to overturn the rule change. not a petition against the rule.

the vote occurs as a result of the petition. The vote takes 60% of owners to vote against the proposed rule change.

I don't see anywhere in the clause you mentioned whether the 60% requirements represents the total number of owners that must vote against or if it means ,, at the meeting called as a result of the petition. 60% of the owners presents must vote against the proposed change. I also don't see any mention of quorum requirements or proxy voting.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

The OP's post says:

Rules and Regulations are deemed approved unless modified or defeated by a vote of sixty percent (60%) of the Lot Owners.

I read this to be 60% OF ALL lot owners. Not just 60% of those at the meeting.