Discrepancies in Declarations ??

Good day group---- I have been going thru in great detail our Decs that were voted on in 1998- I have found a few discrepancies and I need again the "third set of eyes" ( THE FORUM ) to help me see or not see what MAY be a problem...We are curently in the process of rewriting the Decs in order that the members may vote on them in 2008 the anniversary of the renewal ??

Decs made 21st day of oct 1974:Article XII Section 5 : The subdivider,until its conveyance of the Common Ares to the club,and therafter the club,may modify,amend or add to this Dec of Res.The Subdivider,until its conveyance of the common areas to the club reserves the right to modify or amend the plat to correct engineering or survey errors or omissions,realine ,relocate or add to utility easements if required to do so by companies furnishing utilities to the subdivision,or redesign or relocate roads or thoroughfares.No such amendment will ever eliminate road access to any Residential lot or permit the creation of more than (300) lots in the subdivision.

Article XII Section 8 Oct 21 ,1974: The herein contained agreements,covenants,conditions,and restrictions shall constitute an easement and servitude in and upon the subdivision,and they shall run with the land and shall inure to the benefit of and be binding upon and enforceable by the subdivider and or club for a period of twenty five(25)years from the date these covenents are recorded after which time said covenants shall be automatically extended for sucessive periods of ten (10) years unless an instrument signed by a majority of the then owners has been recorded,agreeing to change said covenants in whole or part.Failure of said subdivider and/or club to enforce building restrictions,covenant,condition,obligation,reservation,right,power or charge herein contained,however long continued,shall in no event be deemed a waiver of said right to enforce thereafter as to the same breach or violation or as to any other breach or violation occcuring prior or subsequent thereto.

The above were recorded October 21st 1974 when they redid the entire Declaration

Now fast forward to Dec 26th 1979: The Subdivider desires to amend the Declaration as set forth hereinafter and

Whereas,subdivider has not yet conveyed the common areas to NAME OF THE CORPORATION hereinafter referred to as "CLUB"
Now ,therefore,in accordance to Article XII Section 5 of the Declaration,the Subdivider does hereby amend the Declaration as follows:
1- Section 5 of Article XII is hereby deleted in its entirety,and the following substituted therefor,
"SECTION 5.The subdivider ,until its conveyance of the common areas to the club,and thereafter the club,by a two thirds (2/3) vote of approval of the membership of the club,other than the developer,may modify,amend or add to this declaration of restrictions.The subdivider ,until its conveyance of the common areas to the club ,reserves the right to modify or amend the Plat to correct engineering or survey errors or omissions,realign,relocate or add to utlity easements if required to do so by companies furnishing utlities to the subdivision or redesign or relocate roads or thoroughfares.RECORDED DEC 31st 1979

Now if I understand the Dec 1979 Article XII Section 5 correctly it means that it would take 2/3 memebers approval to amend the Declarations ----However as I read the 1998 first restated and amended Declaration of restrictions they only refer to Article XII Section 8- 1974 where it states majority of the then owners.Would not the Article XII Section 5 amendment supercede as it was recorded in 1979 and states 2/3 vote of approval?
I ask because as they are preparing to redo decs they say that the PRESENT decs for 1998 say majority thus only 51% is needed ,and I feelthat it is 2/3 vote of approval.It also states in our BY LAWS - to amend the BY LAWS it takes 2/3 vote by members- no mention of vote of approval.And on that note - 2/3 VOTE OF APPROVAL- Does this mean you can take 10 months to gather signatures - or does it mean you have a meeting and 2/3 thirds then have to vote to approve?? Last question-- When does the 25 year time frame start? From the First Declaration Recoded in November 1973 or from the last recored amendment in 1979 ,which they amended the ENTIRE declaration ?Sorry for the long post but you all are so helpful as my third set of eyes and i appreciate any and all feed back,,,Thanks again LindaC

Joe- thank you for your reply--- Since being asked to volunteer to sit on our appeals commitee I now have been asked by several homeowners to run for a seat on the Board.....I will take that as a compliment from these people and give it a great deal of thought before doing so....In my research to -day at the clerk of courts and rereading documents the wording of the "majority" is then clarified further in documents that state 2/3 vote.....I will also have to dig out all the original docs that were mailed to us back in 1998 and verify how they had that vote/approval set up....Want to make sure I am not stepping into a hot bed of coals here...There is nothing spelled out with regards to THE VOTE- If you read the by laws of the corp one would assume by wording alone that reference is make several times with regards to MEETINGS and VOTE as if implied you have a meeting- you have a vote- I find it inconcievable that any HOA would allow members to dilly dally and take 8-9 months to sign a piece of paper saying yea i vote for the restated decs.......sorta like- okay the election for the President is over BUT i didn't get enough votes that day but we will let people vote till the day i have to take the oath of office........ Well I prob have alot of homework and research to do if I intend to run for the board.......thank the good Lord I have low blood pressure.......Thanks again LindaC

Linda,

Check your state's non-profit corporation law to see if they put limits on voting periods.

Joe

Good eve group....has been a very active weekend with numerous of us who are running for a seat on the board gathering and exchanging thoughts and reading and comprehending our Declaration of Restrictions.We have found in our First Restated and amended 1998 decs in article XII section 3-
A two thirds (2/3) vote of approval of the Membership is required to modify,amend,or add to the Covenants.Some of us are of the same understanding that it is actually a 2 step process as we understand the wording that I had put in my previous post--- Article XII section 8----

Step One--- A majority of then owners AGREEING to change said covenants.......So in other words if they did not have a MAJORITY of people agreeing to change - they would not proceed any further with rewriting or changing the decs....

Step Two-- After decs were rewritten and presented to the Members- then a two-third (2/3) VOTE OF APPROVAL is required as stated in the decs.......for them to be amended,changed etc......

So ,I guess I am once again asking for your input as to whether we all are seeing this correctly???? We split into groups and did intense counting of legal notarized signatures from 1998 - verified them
with a list of property owners suplied to us from the property appraisers office - found MANY double votes and signatures- invalid Power of Attorney forms and if we all do the math 2/3 of 299 is 200... We can only vouch for 156 total allowable valid votes...........WOW...whats next you say ?? We have no idea. We are just a couple of folks wanting to run for a seat on our HOA and are appalled at what we have uncovered and this is only the tip of what seems to be alot of questionable actions by our present Board..Any help would be soooooo appreciated...Thanking you once again for your assistance Linda C

THANK YOU ROGER.... So are we seeing and undersatnding correctly that 2/3 vote to approve??? We were told this a.m. at management meeting ONLY 150 people needed to vote to approve....That the 2/3 thing we are talking about is ONLY TO BE USED IF DURING THE 10 YEAR CYCLE we want to amend, add or change...But even then it only takes 150 votes......I asked twice and was told the same thing...My math says 2/3 of 299 equals 200 votes needed.............I apologize it I seem aggitated but please understand we are up against ATTORNEYS who sit on the Board and we are being told that due to our lack of understanding of the law we are the CONFUSED ones..........hahahahaha thanks for your help...Linda C

PS please explain to me simple majority vote in terms of numbers and or percentages...........of 299 members

Article XII Section 8 Oct 21 ,1974: The herein contained agreements,covenants,conditions,and restrictions shall constitute an easement and servitude in and upon the subdivision,and they shall run with the land and shall inure to the benefit of and be binding upon and enforceable by the subdivider and or club for a period of twenty five(25)years from the date these covenents are recorded after which time said covenants shall be automatically extended for sucessive periods of ten (10) years unless an instrument signed by a majority of the then owners has been recorded, agreeing to change said covenants in whole or part.Failure of said subdivider and/or club to enforce building restrictions,covenant,condition,obligation,reservation,right,power or charge herein contained,however long continued,shall in no event be deemed a waiver of said right to enforce thereafter as to the same breach or violation or as to any other breach or violation occcuring prior or subsequent thereto.

We asked what this section meant and was told that at the 10 year anniversary date that it only required the majority of owners to approve changing the Declaration of Restrictions.. If 150 owners signed they were then executed and recorded at the Clerk of Courts Office.Some of us feel that agreeing to change and voting to APPROVE or two seperate issues..... Any thoughts .....

- Section 5 of Article XII is hereby deleted in its entirety,and the following substituted therefor,
"SECTION 5.The subdivider ,until its conveyance of the common areas to the club,and thereafter the club,by a two thirds (2/3) vote of approval of the membership of the club,other than the developer,may modify,amend or add to this declaration of restrictions.The subdivider ,until its conveyance of the common areas to the club ,reserves the right to modify or amend the Plat to correct engineering or survey errors or omissions,realign,relocate or add to utlity easements if required to do so by companies furnishing utlities to the subdivision or redesign or relocate roads or thoroughfares.RECORDED DEC 31st 1979

We then asked what this section meant and was told it applied to anytime during the 10 year period that we wanted to modify,amend or add to the Declaration it would requires a 2/3 vote of approval..We did not recieve an answer when asked why so strict during the 10 year but easier to do at the end of ten year.. We all feel we are getting a fluff job and as I make another campaign speech Saturday Eve this subject will come up again and I am looking for input from the group..Thanking you in advance as always Linda C

"(10) years unless an instrument signed by a majority of the then OWNERS has been recorded, agreeing to change said covenants in whole or part"

.....Hate to ask again for input ,but as we are drawing near to our Annual Membership Meeting and that I am running for a seat on the BOD....A few members are finally reading their Deed Restrictions- better late than never as they say and they are questioning the requirements for approval as stated above......Input please---- If it states by a MAJORITY OF OWNERS and there are 299 lots with an average of (2) TWO OWNERS per lot according to the Warranty Deed do you add up say 2 x 299 =590 and the majority of 590 is 299...Is the wording meant to imply it would take 299 signatures of then owners to change ????? Most people are in agreeance that the word is plural (owners) meaning anyone on the deed would be allowed to sign the consent ...........AAAHHHH Thanks again for your time with again LindaC

Joe- Per the Dec's "owner" or "owners" means the owner or owners of any residential lot who aquired title in compliance with this Declaration of Restriction......We are once again infighting over how these Deed Restrictions are to be voted on back in 1998 and the upcoming 2008 amendments..Linda C

typically, "owners" is one vote per lot. the example of a company buying the lot, and having 5,000 "owners" suddenly eligible to cast votes is perfect.. that is not what HOA intend. Or, think of it this way: one lot is bought by a family, and they put the husband, wife, mother, father, and two adult children on the title... you don't give them 6 votes.

Votes go with lots. the only time you get more than one vote per lot is when the declarant still owns, usually.