Amending Bylaws/Declarations

One of our homeowners sent our builder (who has control of the Association) that her gutters need repair and it is
causing water damage to her property.

Our repair/responsiblity list clearly states it is the Association's responsiblity to repair/replace (not the owner's).

The builder sent an email to this homeowner stating that since he has 3 votes to our homeowners 2, he is instructing the PM
to write up an amendment to our CCR's stating it is now the responsibility of the homeowner to repair such. He stated it
will go to a formal vote, however, he has the majority.

I know he is in control, however, can he amend the CCR's whenever it benefits him? If that is the case he can amend any
CCR's whenever he feels like it. He already did when our CCR's stated that 3 Board members made up our board. He changed it
right before the election to 5 so he would keep the majority of the votes and stay in control. The bylaws stated 5 board members and the Declation stated 3 so he was allowed to change it due to the discrepency.

Our CCRs state that control will turn to the homeowners after 75% percent sold to third parties (I am assuming the homes he and his wife own privately are considered third parties) or 7 Years. He could also change this and remain in control of our development
indefinitely.

My question is can the President of the HOA (who has the majority of votes) amend any and all bylaws/CCRs whenever he wants without any votes, etc. from the homeowners of the HOA?

Any advice on this would be appreciated.

It's pretty good odds that he can amend the CC&Rs if he has the majority votes, which is very likely as long as the development has not transitioned to the homeowners.

That also means he can eliminate the discrepancy between the number of board members as well.

Mary - this is not universally true. Our Declaration gave the declarant sole rights to amend the declaration by himself for a finite period of time (7 years unless he chose to relinquish that right before then). In this case - and since our CCRs were generated from legal boilerplate templates like are so many others - I wouldn't think it was unusual to find this situation in others as well.

Mary - I was doing that from memory and slightly mis-spoke, but the essence is the same.

The 7 years referred to a provision in the Declaration during which time he could annex any other property he owned in the county to this Declaration.

His right to unilaterally amend the declaration was limited only by his ownership of lots for sale within the community, and actually he didn't have "sole" right to amend - the membership (as is usually the case) could also amend with a 2/3 majority vote, but if he owned lots, he had to approve the amendment.

The exact wording is:

"so long as Declarant owns any property for development and/or sale in the community, Declarant may unilaterally amend this Declaration for any other purpose .. .. .. "

Given these two provisions taken together, the Declarant once he's sold his lots, could annex others (for as long as 7 years) and continue to have the ability to single handedly amend the Declaration.

Now isn't that a stacked deck!

Maureen, I'm not an attorney nor do I play one on the internet so this is not legal advice but typically but not always any Government backed mortgage (especially VA) prohibit changes by the Declarant once a Government backed mortgage is attached to any lot or in your case unit.

Is the requirement in the CC&Rs or in the by-laws. Typically, the CCR's require a super-majority (2/3rds or 3/4ths) for an amendment.

Mary,

One example is our bylaws stated that at 25% three board members would be elected by the owners (other than the Declarant). Our Declaration stated 5 members would elected by homeowners (other than the declarant) Since there was a discrpency the President/builder amended and recorded a change the day before the election that there would be a five member executive board, therefore, leaving himself, 2 relatives in the majority.

If it was three members the owners would have voted for three owners in our development and the control would be the homeowners.