Ammending CCR's without Secret Ballot?

I live in California and a brand new condo owner. I was about to vote on Ammending our CCR's when I recalled reading something about a secret ballot. My ballot had my address on it and a instruction to vote yes or no. That's it. It had a envelope addressed to a non board member. No stamp.

After reading the CA Civil Code, CLEARLY this method is not in keeping what what I interpreted as a Secret Ballot.
I brought this to the attention of one of the board members who basically said that I was incorrect in my interpretation on the civil code and even if I was, most of the votes were in and they were not going to redo the votes! What???

I did not turn my vote in since it had my address on it and therefore it was not 'secret'.

My questions for this community are:

1) Am I correct in assuming that a Secret Ballot is needed to ammend the CCRs?

2) What actions, if any, would be appropriate if they send these CCR's into the state next week as 'approved' if they were not done by secret ballot?

PS: Our community is small, less than 50 units. I had suggested to the board member a simple re-vote with the appropiate voting regulations would be fairly simple, but nooooo, I'm wrong! LOL

Thanks in advance!

Cookie

Jeff,

Thank you for your prompt reply.

I did go to a board member. It is my belief, unfortunately that they, in their rush to get these CCRs passed (which contain errors/ommissions per the civil too) will not do another vote.

If I do go to court, will I have to do it on my own or on behalf of the association, do you know?

Feeling like I'll need to get some legal advice eh?

Good idea. Instead of just the one, I'll mail a notice to each board member.

Thanks.

Jeff, the procedure you describe may be commonly used but I wonder how wrongdoing is prevented. It seems to me that ballots can easily be removed and replaced with an opposite vote when there is no signature on the ballot.
In Colorado, DARCO recommends using ballots which have the unit ID, signature, and date. And when the CC&Rs are amended and restated in their entirety these ballots are filed as part of the updated CC&Rs.

Roger, the process I described is spelled out in the Davis-Sterling Act. The reason you have to open envelops and count votes in an open meeting is to prevent any tampering.

Here is the link to the statue http://www.davis-stirling.com/SecretBallots/tabid/2012/Default.aspx#axzz1cf5ktDTv

Jeff & Richard are correct, Roger. Secret ballots are the law here. Opening & tallying them at an open meeting prevents tampering.

Cookie, there must be one or three "Inspectors of Election." In our HOA, the board appoints them from among owners who volunteer.

It is a good idea, as Brad suggests, to write a letter to every board member pointing out their mistakes, and ask that the letter be included on the agenda of an open meeting. Attend that meeting, Cookie, and make your case. Make sure that it's noted in the minutes. Sounds like your board is playing pretty fast & loose with the law.

To answer your questions here's what I recieved:

A white binder with the entire CCR's. Hundreds of pages Not just what was being ammended but the whole kit and kabbodle. The items that were to be ammended where not highlighted in anyway. The current CCR's are about 15 yrs old so they thought they'd just give us everything instead of just what was being ammended and we could just vote on 'everything' as a whole. Oye.

I got one envelope (no stamp) addressed to Mr <> (who is not on the board)
address
city state zip

I got one ballot that says:
-----------------
Ballot for CCRs and Bylaws
blankety blanky HOA
address
city state

To: MY ADDRESS (this was what caught my attention)

"This is a ballot for you to vote on the CCR's and Bylaws. Please return the ballot within 30 days to in the self -adressed, stamped (no stamp) envelope"

____ Yes I agree with the new CC&R's
____ No I do not agree

Thank you for your prompt return of the ballot.

--------------------------

And that was it!

I just wrote and mailed the letter to all the board. Let's see what happens. The HOA meeting is scheduled for the 14th.

I will write another letter and ask that it be read at the meeting too I guess! Good suggestion. What if they refuse?

I'm going to have to start a new thread for all the other issues with this board! Thanks for your help with this one so far!

You guys are the best!

Cookie!

Brad,

I agree that one must weight the options of going to court and the costs to the association etc and whether or not there is fraud going on here as a result of non complaince with the law. These people, as I said, don't even know what the Davis Sterling Act is, which is NO EXCUSE whatsoever. This association has been in effect since 1974 and no one knows?

I think the bigger issue here is what exactly this board will do with this information. Will they comply with the law or will the take the attitude that they don't have too. I think that, more than anything, is what I am evaluating.

It will tell me and this community alot about this board.

Don't you think?

Cookie

Cookie:

It will tell you a lot about people's integrity. Let's be honest the rules could be sidestepped numerous times in any association without issues or repurcusions...but when you have people with questionable integrity and character that is when the red flag gets raised.

Good luck

Restating vs Ammending. Interesting.

They are, in fact ammending the existing old CCR's that is they are adding new CCR's to the old ones, AND restating/rewording the old ones to bring the up to date (even though they are still wrong and not in keeping with the current civil codes).

They are having us vote on the entire packet as a whole and plan to submit the package as a whole.

What I mean to say is this: The packet contains the entire HOA CCR's, old and new, combined in total. There is no differentiation noted as to which is exactly the same, which is new, which is being reworded.

There are several new items I do not agree with.

There are several statues that are not in keeping with the Civil Code.

There are several things I think that should be included that are not, ie, specifics on how the board is to dicipline a member, our rights to have the fee schedule, our right to veto a rule, the specifics of the open meeting act etc etc etc. There is very little in there about 'our rights'. There is very little in the CCR's that is 'spelled' out as far as our rights. It is very Board Biased. When I brought these issues to the attention of the one board member he said, "That's ok, we'll fix them later, we have to get them into the state."

When the State of California recieves the CCR's will it review them and catch what is missing/wrong? What exactly happens?

Cookie, does your HOA have bylaws? Some of what you want in the CC&Rs may be in your bylaws. Do you have Rules & Regulations? Some of what you want to see about rules might be in there.

Somewhere near the front of your CC&Rs might be a list of your governing documents. If you have definitions of terms near the front of your CC&Rs, skim through them to see what they say..

Is it possible that you're missing some governing documents?

Cookie,

Restating can be used to just combine past adopted amendments into a single document or can include additional amendments or a complete rewrite. It sounds like your Association is Restating the CC&Rs.

If there is a conflict between your CC&Rs and State law, typically State law controls (unless they defer to the governing document).

Had this been brought up prior to the vote, I would have suggested that you start a campaign in the development to vote against the proposed CC&RS. Specify the reasons why and a possible solution to do it properly (perhaps volunteering to head a committee to propose changes to the Board for a future membership vote). However, since the voting occurred, the only options left are:
1) challenge the procedures to the Board (as others have suggested)
2) challenge the amended document in court due to procedural issues
3) live with the new document
4) sell and move

Cookie, if they are recording the entire package they are restating, not amending.

An amendment would say something like this "This is an amendment number X to CC&Rs recorded on such and such date"

Since they are recording the whole thing, they are not amending it they are restating the whole package.

The state will not read your documents and will not know what's inside. They will keep a copy and basically give you a certificate that such and such document was recorded by them on such and such date.

CookieB,

Was there an attorney involved? Perhaps “attorney review” is what is missing.

Yes as Roger just stated – Based on Documents that I am familiar with - A typical title page and/or first page might read something like:

AMENDED AND RESTATED DECLARATION OF CONDOMINIUM FOR ……. The date of this Amended and Restated Declaration of Condominium is …….

This Amended and Restated Declaration of Condominium amends and replaces the Declaration of Condominium for …… ….…. as amended and supplemented, as described below and restates, in a single document, the covenants, conditions, easements, ………

CookieB stated “The current CCR's are about 15 yrs old”

I do not know whether or not this applies in California, but in Vermont, an Amended and Restated Declaration must be adopted in accordance with the provisions of the ORIGINAL Declaration relating to amendments

It requires that any such amendment must be adopted in conformity with the procedures and requirements SPECIFIED in the ORIGINAL Declaration, as amended.

For Example an ORIGINAL Declaration might state re adoption - Such consent may be evidenced by a vote of approval by such owners at a meeting of the Association, or in writing by such owners if not present at that meeting.

So is it possible in California, that in reference to the vote that CookieB is asking about, that the vote only had to conform with, to, what was in effect 15 years ago?

If yes, then what was the “vote requirement” 15 years ago? Is it possible that back then a secret ballot was not required?

OMGosh! In response to my letter, the board has issued a notice to all members stating that they will have a reading of the ballots on Saturday at 10am with coffee and donuts! This is NOT a board meeting so there won't be any discussion of anykind, just a reading of the ballots? What the hell are they doing?