Amendment to Covenants

Just found out my HOA passed a new amendment to the convents. For simplicity the amendment modified rules on rentals. The vote was conducted during a special meeting. 21 voting members showed up and voted yes for it. Our HOA consists of 134 members, out of those 134, 24 are unable to vote because of due violations.

So... 21 Voted yes, 113 didn't vote.

When the meeting minutes were distributed, they said the amendment passed and had been recorded in the County of Deeds.

When I read the section of the covenants covering amendments (full paragraph at end), it requires "a majority of the votes of all members... of not less than a majority of the lots then subject to this Declaration". It seems to me that an Amendment requires a majority of the 134 owners, so 68 votes is a majority.

I have inquired both in writing and at an HOA meeting as to how this vote passed when it seems readily apparent that 68 votes are required. The Board is stonewalling me and have stated that a lawyer has reviewed their documents, and they are legal. I'm not concerned with the verbiage of the Amendment. I'm concerned that the Covenant Rules were not followed, and the amendment is invalid.

I asked for the name of the law firm. They have refused to give it.

I don't believe this amendment meet the threshold to pass. Am I right? And what do I do.

Any help is greatly appreciated!

The section of our covenants that covers amendments states,

"Amendments. Any provision contained in this Declaration may be amended or repealed, or additional provisions added to this Declaration, by the recording of a written instrument or instruments specifying the amendment or repeal, executed by the Owners as shown by the records in the office of the Register of Deeds of XXXXXXXX County, Kansas, who have a majority of the votes of all members pursuant to§ 2.02 hereof; of not less than a majority of the Lots then subject to this Declaration; provided that so long as Developer owns three (3) Lots, any such instrument or instruments shall require the written consent of Developer, and further provided that no amendment materially impairing the rights of any mortgagee shall be binding on such mortgagee unless consented to in writing by such mortgagee.

2.02 states

2.02 Voting Rights. Any Member, so long as they shall qualify under this Article II, shall be entitled to vote on each matter submitted to a vote at o meeting of Members. Each Member of the Association shall have one (I) vote for each Lot owned by the Member, subject to the following exceptions and conditions:

(A) When any such Lot is owned or held by more than one ( 1) Member as tenants in common, joint tenancy or any other manner of joint or common ownership or interest􀄚 such Members shall collectively be entitled to only one ( 1) vote relative to such Lo􀄭 and if such Member cannot jointly agree ns to bow that vote should be cast no vote shall be allowed with respect to such Lot.
(B) Any Member who is in violation of this Declaration, as determined by the Board, shall not be entitled to vote during any period in which such violation continues. Any member who fails to pay any assessments established pursuant to the terms hereof shall not be entitled to vote during any period in which any such assessments are due and unpaid.
(C) Notwithstanding the foregoing, Developer shall be entitled to three (3) votes for each single Lot owned by it.

CharlesB33, is this HOA still under Declarant control?

Also I wonder if the board ultimately concluded that the covenants authorized the board to create reasonable rules about the rentals, without an owners' vote. This is not uncommon.

I urge ceasing inquiry into which law firm advised what. The law firm does not call the shots. The Board does. Even if the board is lying about what the law firm said, such lying is not relevant.

If the new "rules" amount to de facto attempts to amend the covenants, then here is one thing you can do: You can attempt to enforce the covenants yourself, by writing a polite letter at first and then elevating gradually, until you are threatening a lawsuit and preferably, have hired an attorney. Once you threaten suit, the HOA attorney is obliged to explain why the amendment is legal, in his view, so as to keep this out of court.

If you threaten suit, instantly you will get different treatment from other owners. The board has the right to be not as forthcoming. In addition it is common for boards to retaliate against anyone asking 'too many' questions, even if the questions are important ones.

Your questions are important. Unfortunately I do not believe you should attempt to deal with this without your own attorney.

As you suspect, CCR amendments typically require a certain percentage of all voting interests (members). It appears the board is trying to get away with a majority of a member meeting quorum, which is sufficient to elect directors, but not to change the CCRs. I would also agree that having members ineligible to vote does not reduce the threshold, so your expectation of 68 affirmative votes seems correct to me although IANAL so take that with a grain of salt.

Unfortunately, if the board persists on insisting the amendment was properly voted on and they record it and try to enforce, there is not much to do other than legal action (or at least the threat thereof). If unchallenged for long enough, it might be much harder or impossible to overturn.

Many covenants have language along the lines of:

The assessments levied by the Association shall be used exclusively for the purpose of promoting the recreation, health, safety and welfare of the residents in the properties (including administrative and overhead expense) and in particular for the improvement and maintenance of the Common Areas, services and facilities devoted to this purpose and related to the use and enjoyment of the said Common Area and of the homes situated upon the properties and more particular the Association shall be responsible to carry out the following named functions in and about said Subdivision. . .

OR

The Association is for the purpose of maintaining common areas, easements and right of way designated by the Developer for all residents use and enjoyment.

Arguments can be made that promoting recreation or maintaining an area for residents use and enjoyment include funding/hosting social activities.
Depending who is on the board, those arguments can be seen as solid evidence to hold events or not.

Charles,

Since this is an amendment already recorded, I don't think you will not make any headway arguing with the board.

You will have to challenge the amendment in the courts.
There may or may not be a time limit to raise that challenge.

I would suggest you speak to an attorney versed in contract law and see what your legal options are.

The recorded amendment probably is void even though recorded but it probably has to be challenged within a certain time period so don;t let that pass by.