Letter of Consent to amend HOA Declaration

Started by StephenP11 • 8 replies • 263 views

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StephenP11 (Florida)
Posts: 3

Posted:

This is the opening phrase to Chapter 617 section 617.0701(4) "Unless otherwise provided in the articles of incorporation" The Stonecrest Articles of Incorporation say this: "An amendment may be adopted by a written statement (in lieu of a meeting) signed by all Members of the Association and all members of the Board setting forth their intention that an amendment to the Articles be adopted." I need some clarification as to what this really means. Can the Board now send out the letter of consent and use the same 2/3 majority they have defined as if it were a meeting instead of a letter. Or must they get 100% participation?

MelissaP1 (Alabama)
Posts: 13,836

Posted:

When we changed our CC&R's and Articles of Incorporation it required a "special meeting" to do. Meaning that majority members had to come to a meeting to adapt/vote the changes we wanted to make. However, as you can imagine trying to get 107 homeowners to ONE meeting all at once is impossible. What happened is that our lawyer drafted up 2 forms to sign. The first one was to agree to NOT attend a special meeting to cast your vote for the changes. The 2nd form was for the actual changes themselves. This freed us up to take the membership vote at any time and anywhere. Often we tried to do it at our regular meetings. However, it did come to a point where had to go door to door.

What it looks like to me that this is similar in terms. You can make the changes in lieu of having a special meeting to do so. Will still need the majority vote required. Each HOA varies on that amount. It can be around 51 to 100%. Plus Articles/CC&R's or By-laws may not be the same percentage. It was 90% for our CC&R's and 75% for Articles/By-laws.

Keep in mind after the HOA makes these changes and gets the votes, they have to be put on file. This can cost a few hundred dollars alone. It was around $700 to file in my area. That was not including the lawyer's work. It can cost a few thousand dollars to do all of it. That may not include copies. Which they are PUBLIC documents. The HOA isn't necesarily responsible for distribution but nothing wrong if the HOA does. Just don't assume it is a HOA responsibility. It can ask for money to cover the expense of providing copies.

Former HOA President

LoriM15 (Florida)
Posts: 1,009

Posted:

My interpretation is that if you decide not to have a members meeting and follow those voting procedures outlined fin tour documents on adopting a change to the declaration, then you can amend the documents if you get 100% of the members to agree to a letter of consent. It clearly says ALL MEMBERS.

KerryL1 (California)
Posts: 14,550

Posted:

I also see it as saying 100% of all Owners and 100% of all board members (in case, apparently, not all board members are owners).

StephenP11 (Florida)
Posts: 3

Posted:

There was a letter from the attorney that blessed this letter of consent procedure. However, when I went back and read the letter from the attorney, I did not get the vibe that he would bet the house on what is being done. Also, he never mentioned the paragraph I read in the articles of incorporation where in lieu of meeting a letter could be used. Now was it not relevant or did it get missed? Of course, I'm Satan for even mentioning that clarification might be in order.

LoriM15 (Florida)
Posts: 1,009

Posted:

I would not be on a board that tried to use a letter of consent with the 2/3 majority called out for a regular members meeting. That's not what your documents say. Attorneys can be wrong - maybe he had never seen your documents. Why is it they don't want to have a members meeting for this?

StephenP11 (Florida)
Posts: 3

Posted:

Good question, Why? This is the second time the letter of consent is being used. With the first letter used for a proposal not enough letters were returned. So, they canvased the neighborhood to get people to turn them in to the HOA. I have real problem with this letter of consent. Especially when the justification comes from a section of corporate code that was never meant to be used in an HOA setting. In the past they have had problems getting a quorum at the annual meeting so for years they looked for a work around. Last year they came up with the letter of consent. I see a problem where a rogue board could use this in a corrupt manner.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By StephenP11 on 05/01/2023 6:31 PM
I have real problem with this letter of consent. Especially when the justification comes from a section of corporate code that was never meant to be used in an HOA setting.

What's being amended here is the Articles of Incorporation. Of course direction should be take from the corporate code. Corporate code says to read the Articles. No big deal at all.

A letter of consent is perfectly appropriate.

I agree with the others that 100% of owners must sign the letter.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Last year my BOD was considering a Covenant changes which requires 2/3 OF ALL OWNERS approving. Our attorney (largest HOA practice in SC) said he could draw up a "document" that allowed us to collect signatures over a period of one year to make the change. No need to vote. Just collect signatures. We decided not to make the change.

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