What is the process to change/add to CC&Rs?

Started by BillK7 • 19 replies • 3725 views

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BillK7 (California)
Posts: 7

Posted:

I have lived in a shared waterfront community in Washington state for almost 6 yrs now. When we were thinking about moving in, I went to a board meeting & talked with the current board about parking a wakeboard boat with a tower on it in an RV slip on the side of the house we wanted, behind a 6' tall x 10' wide gate. The board at the time looked over the rules, which did say that no part of the boat could be visible from over the fence. Well the boat is like 9' tall so you can pretty easily see the tower over the gate. But they said at the time that the boat itself was not visible & this was "in the spirit of the rule" & would not be a problem. So we moved in.

Fast forward 2 yrs & a neighbor who lives 2 blocks away complains about being able to see the boat over the fence. The board at that time (different members) reviewed the case again & again ruled that my boat parking situation is "in spirit of the rule" & is not a problem. I actually have the minutes in print from this meeting.

Now fast forward 2 yrs later & this same neighbor is complaining again. He has done some homework now, including coming up with specific cases where an HOA sued a homeowner & forced the point.... and won.

In turn I got 35 signatures (out of 52 owners) who are in favor of changing the CC&Rs. We want to add a rule that it is OK to park a boat in the home owner's driveway or beside their house from April 1 - October 31, as long as the boat is in usable condition & appropriately covered (no tarps). The board basically did a song & dance around it saying that I have to follow a process to get the covenants changed. But they can't tell me what that process is. Every place I've found says that the process should be outlined in the covenants, but it's not.

So is this process in print anywhere? From a reputable source?

Thanks all.
-
Bill

TimB4 (Tennessee)
Posts: 21,062

Posted:

Bill,

It is fairly common for the covenants to specify how to amend them. It usually states that it takes x% of membership or of votes cast to amend.

If it does not state how to amend the document, you should follow the procedures for a special meeting and a vote by the membership. I would suggest a minimum of 34% for a quorum for such a meeting (based on RCW 64.38.040). I would also suggest a minimum of a simple majority of the membership (better, 2/3rds of the membership) to pass.

Tim

MicheleD (Kentucky)
Posts: 4,491

Posted:

Bill, do you have a copy of your covenants?

Do you have a copy of your Association's By-laws?

Sometimes the procedure and/or detail on votes, including votes to amend the documents, can be found in the By-laws.

If you don't have either, you should first get both of them.

Then you will need to read both thoroughly.

When you do, have a highlighter on hand and then highlight ANY sections that mentions "voting" or "ballots" or "amending" the documents.

BillK7 (California)
Posts: 7

Posted:

I have a copy of the covenants. But not the by-laws. So I just asked the president for copy of the by-laws. Hope the process for changing the covenants is outlined in there. It's NOT in the covenants.

Tim,
I have 35 of 52 signatures. I was told that a quorum was 67%. So that should qualify under every rule I've found so far.

Thanks much folks.

BillK7 (California)
Posts: 7

Posted:

OK, check this out. Heres our covenants.

- From what I understand, my petition with 35 of 52 signatures covers this:

Page 19:
5. Project Document. Amendments. Lot owners shall have the right to amend the project document.s, subject to the rights of any first mortgagees to participate in the amendment process as provided in this paragraph. Amendments of all materia1 nature shall be agreed to by the lot Owners representing at least. sixty-seven percent (672) of the total votes of the LLVHA and t.he first mortgagees representing at feast fifty-one percent (51?) of the votes of the lots that are subject to mortgages held by first mortgagees. Change in any of the project documents which would affect provisions, including, but not limited to, any of Lhe following would be considered material:
Long list

Page 26
2. Amendment. These covenants, conditions, and restrictions may be terminated or amended in whole or in part at any t.ime in compliance with the provisions of Article XII, section 5. Such termination or amendment sha1l be seL forth or a properly executed acknowledged i-nstrument, which instrument shall be recorded in the Office of the County Auditor of Spokane County, Washington.

- There is no section 5 in Article XII! WTH?

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Hey Bill,
I am in on this late, and it appears things are starting to resolve. An observation would be that you temper your questions with a lot of research. You made some pretty definitive statements that the information you wanted was not available, in spite of suggestions that normally this stuff is in your documents. You went from "it's just not there" to "hey, check this out."

You have lived there for seven years and apparently got along fine until someone questioned a covenant you maybe violated. May I kindly suggest you need to start getting involved in running your association and not become just a squeaky wheel. As you get involved in this process of amending your documents, you will find it can be a hard job, and as long as your association is considering an amendment, now might be a good time to go through your entire documents and make corrections and additional amendments. Cheaper and a bonus if you can swing the organization of the Board Appointing a Documents Review Committee (with you as Chairman). Really a pretty productive idea, on the face of it.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Bill,

You said there is no section 5 in Article XII; so what is the number 5 you posted which outlines the procedure for amending the "project document" which I believe may be the covenants. If what you posted is indeed the proper reference for amending, then 67% of the members must agree to the amendment. Also if amending the restriction you mention is considered "material" then 51% of all first mortgagees must also vote in favor of the amendment. If the latter is a requirement you may as well forget it, IMO!! However, if you only need the members' vote, then it appears you should get it as you've gotten 35 members, which is 67%, to sign the petition.

The normal procedure for amending the covenants is for the BOD to call a special meeting of the members in accordance with the procedures outlined in the bylaws. The proposed amendment should be stated on the ballot, along with a "yes" or "no" box to check. If 67% of the membership votes in favor or the amendment then it is so approved. The amendment should then be recorded in the Office of the CO Auditor of Spokane Co., WA thereby rendering it a legal amendment. You petition cannot be a substitute for a ballot.

BillK7 (California)
Posts: 7

Posted:

Thanks again for getting back to me on this, folks.

Robert, I just started this thread yesterday so your not late at all. My point of going from "it's just not there" to "hey, check this out" was to show that I believe I found where the information is supposed to be, Article XII, section 5.

Mary, the two sections I posted are the only places in the covenants I found that mentioned anything about making changes. The section 5 I listed is from Article IX...... close but seems to lack the details I am looking for in my original post.

I am very involved in the running of the HOA.... from the maintenance side, not the administrative side. Those guys don't get anything done & it's too frustrating to deal with very often. This issue is years old, and thats not uncommon in this HOA. There are projects being dealt with now that pre-date when we moved in 6 yrs ago.

I think I'm going to contact the Auditor's office today & see what I can find out.

JeanneK3 (Maryland)
Posts: 562

Posted:

Bill:

I agree with Mary. It is likely that a simple petition to change bylaws is illegal in your state. Most states require that the text of the revised bylaw be sent to all members for review for a certain time and a meeting held where a vote is taken in person or by proxy to amend. The reason for this is so absentee owners get to see the change. By walking around with a petition you've excluded individuals the opportunity to vote.

Jeanne

MaryA1 (Arizona)
Posts: 7,043

Posted:

Jeanne & Bill,

A peititon is NOT a ballot and cannot take the place of a ballot. All the petition does is request that a particular action take place. In this case the petition would be requesting the members to ask for an amendment to the bylaws. If the OP's petition was intended to take the place of a ballot then it would be ruled illegal. The bylaws should have specific requirements for amendmending that doc and also for holding a special meeting to vote on the proposed amendment. One very important requirement would be that the notice of the meeting be mailed to every member of the assn.

BillK7 (California)
Posts: 7

Posted:

I never meant the petition to take the place of a ballot. I meant it to show the board that there was interest from at least 67% of the HOA population in a specific rule change. I realize there should still be a vote.

I visited the county auditor's office today. They show that Article XII, section 5 was removed from the covenants in 1993. Since then there is no specified way listed to change the covenants.

MicheleD (Kentucky)
Posts: 4,491

Posted:

Quote:

Posted By BillK7 on 04/19/2010 4:43 PM

I visited the county auditor's office today. They show that Article XII, section 5 was removed from the covenants in 1993. Since then there is no specified way listed to change the covenants.

Wow! How weird is that?! Why would anyone do that? Bizarre.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Bill,
I don't want to sound as if I am just ragging on you but this thread goes all over the place, and your latest compounds matters.

You say the auditors office show that Section 5 of article X11 was removed.
In the first place I am confused, the auditors office would not be where I would look to find the registration of the Documents, but that might be state semantic differences. But given that you found them at the courthouse, are they registered with your association? Any amendments to those deocuments would show, who and how these changes were made.

If you have a copy that has section 5 and the courthouse copy doesn't show an official amendment, then I suspect your copy would prevail if it was issued to you in the past. If you don't have a copy of section five, how do you know it ever was a part of your covenants. I assume you want to use this information to accomplish something so I suggest you put together a synopsis of what you know, and what you lack for this all to make some sense. Where is all the copies that the management office should have and doesn't the board keep a ready correct copy available when they discuss business or have document questions.

You may recall seeing or hearing of the censorship to correspondence that went on during the second world war. All the mail to and from servicemen and women was censored. They would black out any information that the censor felt might aid and abet the enemy. The letter ended up with a bunch of lines and blacked out spaces all through the letter. Very difficult to establish continuity.

BillK7 (California)
Posts: 7

Posted:

Robert,
The county auditors office is where all legal documents like this are registered & kept on file for public record. They have 3 versions of the covenants for this HOA including the original from 1990. Of those 3 versions, they kept the filing dates & the old versions. The signatures on them are kinda tough to read though. The board & I have copies of the most recent version. It's ridiculous how their literally cut & pasted together, old type written copy with paragraphs from a computer printer on top.

MicheleD (Kentucky)
Posts: 4,491

Posted:

Robert, just to clarify, his copy has a Section 5, but under a different Article.

The Section 5 that he needs is under Article XII, and that was removed in 1993 and it appears the entire set was re-filed WITHOUT that Article XII, Section 5, which addresses amendments/changes to the covenants.

The Section 5 that Bill has that is still intact in his documents is the Section 5 under Article IX, which talks about amending the PROJECT documents, which apparently are a different type of document than the Covenants, Conditions and Restrictions.

I could be wrong, but Project Documents sound more like what the developer uses to get approval from zoning for certain things like setbacks, minimum square footage of homes, lot sizes, etc.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Michael and Bill,
That still leaves the question of whether the documents were amended legally? If you want to accept they are legal documents as they stand now, and you are sure you have a copy of the latest on file at the court house, it appears the thing to do is to have a few members of the association to draw up an amended revision of the entire documents. If you can highlight the changes you want deleted, insert the new language and underline it, when you are finished you have a corrected document that you can propose at a special meeting the next time you do an annual meeting. That is essential how we did it and now we have the documents listed as the First amended revision of the Documents. The ownership would have to approve all the changes by whatever vote is called for in your documents. It is a long process and takes hours of work but when the special meeting is called to approve the changes, we found any objection minimal. Just stay away from inserting personal agendas and this is also a good time to remove any reference to the developer/buider that don't need to be there.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Bill,
This just occurred to me. If you have copies of the last change that was made; how was the change registered?
Was it a revision of the document or an amendment? You will have to check the three versions to see that the two additions to the original were just amendments, and not a revision.

Somehow, you all have got to get back to zero and rebuild your governing documents. I suspect any judge that would look at the mess you say your documents are in, would not have a favorable impression. I believe the case that get to court, I think I read somewhere like 1%, are influenced greatly by how well the association was run in the past. After all, it is the membership that is required by law to conduct the association business, and the BOD is simply an extension of that responsibility. Good board can handle it, and they may be in the majority. We here on this site are always looking at controversy.

BillK7 (California)
Posts: 7

Posted:

Talking to the guy at the Auditor's office, they don't really have any official method to register the docs. If they are legible, have the right size paper & the right margins, they will record the docs.

I think this brings me back to the original question, if the guidelines to change the covenants are not listed in the covenants (like their supposed to be), is there a standard set of guidelines used for making changes to the covenants?

MaryA1 (Arizona)
Posts: 7,043

Posted:

Bill,

In answer to your question: No, there is no standard set of guidlines to use to amend your covenants. The covenants should contain an article outlining the procedure to amend.

I would suggest going back to the Auditor's Office and getting copies of all the CCRs that have been recorded. How was the section removed; was it by an amendment to the CCRs? Perhaps it was removed in error! Perhaps it should be reinserted!

FYI, your Auditor's office operates the same as most county recorders' offices. They don't care what you are recording and do not ascertain the legality of the document, their only job is to record it as long as it meets the requirements of a document that is presented to be recorded.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Bill,

Copy any of this that fits. It will be a change or an amendment, so construct what you want to do. As noted our terminology is Master Deed and then the by-laws are next in order.......yours may be different, but as I say this is a change and words will be different from place to place. Use what fits and change what don't.

****************************************

Amendments to By-laws.

Section 1. Bylaws. These Bylaws may be amended by a vote of not less than seventy-five percent (75%) of the Percentage Interests of the Council at a duly constituted meeting only for such purpose, in strict accordance with the Master Deed. Any amendments shall be set forth in proper form and duly recorded. Each and every Owner of a Condominium Unit by accepting a deed therefore thereby agrees to be bound by and benefit from any such amendment hereto.

Section 2. Conflicts. In the event of any conflict between the provisions of the Master Deed and the provision of these Bylaws, the provisions of the Master Deed shall control.
*******************************************************

Amendments to Master Deed

ARTICLE XII - GENERAL PROVISIONS

Section 1. Amendment. Amendments to the Master Deed and Declaration, except as herein expressly provided to the contrary, shall be proposed by the Board or by ten (10%) percent of the members of the Council in writing and in accordance with the following procedure, to wit:

(1) Notice. Notice of the subject matter of the proposed amendment shall be included in the notice of the special meeting of the Council at which only such proposed amendment is to be considered. At least fifteen (15) days but not more than forty (40) days written notice of the meeting shall be given by the Board.

(2) Adoption. The Master Deed and Declaration may be amended at any time and from time to time after notice as herein above provided has been given and there is an affirmative vote of sixty-seven (67%) percent of the total percentage interest of the Council; except where contrary to a designated percentage by the Act and in such case the greater percentage shall be required hereunder.

(3) Recording. A copy of each amendment provided for in this Section 1 shall be certified by the Board as having been duly adopted and shall be effective when recorded in the Office of the Register of Deeds of County, S. C.

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