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Subject: Presentation of and voting on multiple amendments
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GenoS
(Florida)

Posts:1319


04/12/2017 2:20 AM  
My HOA is considering several amendments to our CCRs which will be placed in front of the homeowners at the next annual meeting for their approval. My question is about the numbering of sections in the CCRs with potentially more than 1 amendment making changes. Tweaking section and paragraph numbers that don't affect the actual text seems like it should be trivial, but we aren't so sure about that.

The first amendment is an omnibus amendment that will bring several different sections of the CCRs up to date and into compliance with changes in the law over the last 20 years. We think this will not be too controversial and estimate a 75% chance of success that the owners will vote to approve it. This amendment will ADD a new "Section 1" to the CCRs resulting in all the section numbers that follow it will be increased by 1.

The second amendment makes changes to what is currently "Section 4" of the document.

What happens if the first amendment fails to pass? Do we need to have TWO versions of the second amendment ready for the homeowners to vote on? One conditioned on approval of the first amendment and thus making changes to what would then be "Section 5" and another conditioned on the rejection of the first amendment in which case "Section 4" will remain as "Section 4"?

Can amendments be worded to anticipate and account for unpredictable changes in document structure and numbering as a result of earlier amendments considered at the same meeting? Conceivably, an early amendment could change the numbering of the sections right out from under a subsequent amendment that seeks to amend a later provision in the document.

We're going to be considering 4 amendments in total and there are 16 distinct outcomes possible. Is there a standard way to account for all the permutations that exist? We don't want to draft 16 different sets of amendments where the only differences between them are paragraph numbers.

I can't get past the idea that if the attorneys draft an amendment that makes changes to "Section 6" then it would not be proper for the board and/or the owners, during the annual meeting, to manually re-number the paragraphs and tell the owners, "forget what the attorney sent us and what we sent you to review 14 days ago.... we're all voting on this revised amendment now." I can see that not ending well.

Is it not possible for an owner at a meeting considering amendments to say, "Yes I want to change the satellite dish restriction to reflect FCC OTARD rules, no I don't want to allow RVs to park in the clubhouse lot, yes I approve of these new pet restrictions and no, I don't want to restrict an owner's right to lease his home," all with a tacit or explicit acknowledgement that the document will be re-numbered sequentially once all the approved amendatory language is incorporated? Can it be done with one big amendment where the owners can pick and choose which parts they want to vote in favor of and which parts they are not in favor of?

I really hope that I'm making this more complicated than it needs to be. Thanks in advance for any advice, I'd be most grateful.
RogerB
(Colorado)

Posts:5037


04/12/2017 6:36 AM  
GenoS, getting just one amendment to CC&Rs can be difficult when there is apathy and when the CC&S require more than a simple majority of all homeowners. So keep the number of changes to a minimum and present it exactly the way it is to be approved. If that entails changing the format from which it was received from your attorney do so before voting. Also, I have never experienced sufficient homeowners persent at a meeting to meet the required homeowner approval requirement. It has always required mailing ballots with an explanation for each change and then often following up with door to door visits.

If there are many changes I would suggest "Amending and Restating the CC&Rs". This is an entire rewrite.

If only a couple of changes, then vote separately on each option. For example: for three changes - A, B, and C you could vote for each change independently. The change could include A+B, A+C, B+C, or A+B+C ballots; but with more changes the chances for approval get more difficult.

I have had experiences doing all of the above and in your example have preferred to Amend and Restate to be the best option for out-of-date CC&Rs.
JeffT2
(Iowa)

Posts:317


04/12/2017 8:10 AM  
Is there some reason that this section needs a number? The first section can be titled something like Opening Section, Introductory Section, Addition to [CCRs], Opening Addition, 2017 Amendment, First Amendment to [CCRs], or just don't give it a name or number. Add a sentence to the section that says This section shall be referred to as Opening Section (so that other documents can site or refer to the section).
SheliaH
(Indiana)

Posts:1859


04/12/2017 9:32 AM  
I agree with Roger – better to propose to amend and restate the CCRs in one fell swoop if you have several proposals. You could also determine which amendment should be addressed sooner rather than later – instead of four amendments, have homeowners vote on one or two and see how it goes.

It doesn’t sound like you solicited comments on these changes, so why not do so BEFORE you start tweaking the language? Present your packet at the meeting, which would explain why each amendment is being proposed, ask everyone to read them and send in their comments. Give them a deadline and then review all the comments to see what patterns develop.

That’s when you tweak the language and then present the revisions, perhaps explaining why some things were changes and others left as is. The homeowners would then vote on the final draft – yes to all, no to all or yes to these 3 or no to that one. From there, you’ll know how to number the amendments properly, although I would suggest you get a paralegal to help you ensure the right changes go in the right area.
GenoS
(Florida)

Posts:1319


04/12/2017 2:32 PM  
Thanks for the replies.

In 24 years we have never not made quorum at the annual meeting so we're not too concerned about that although there's a first time for everything. I'm told that at annual meetings in the past where amendments were considered even MORE people showed up than usual. About 6 years ago the amendatory threshold of voter approval to amend the Big Three governing documents was reduced to a simple majority of the homeowners voting at a meeting with a quorum. I will be very surprised if the voteing doesn't happen next January.

We have conducted surveys on the issues addressed by the other amendments and a wide range of opinions was expressed. It's exactly for that reason that we split out the 3 "controversial" amendments. We don't want any showstoppers for some people to torpedo the rest of the changes that need to be made.

I'm looking at FS 720.306(1)(b) which says, in part, "Within 30 days after recording an amendment to the governing documents, the association shall provide copies of the amendment to the members. However, if a copy of the proposed amendment is provided to the members before they vote on the amendment and the proposed amendment is not changed before the vote, the association, in lieu of providing a copy of the amendment, may provide notice to the members that the amendment was adopted."

This heavily implies that an amendment may indeed be changed at the meeting and before a vote is taken. In our case, the changes would be only to the section and paragraph numbering. Of course, there are owners here who insist that the exact language typed up by the attorneys is the only language that may be voted on by the owners and it's a take-it or leave-it situation. We can work with that as long as we can get a written opinion from the attorney to convince the naysayers.

We thought about doing a complete "revise and restate" with the documents. Truth be told, however, there are even more changes that probably need to be made to the documents and the current committee working on this has spent oodles of time over the last 6 months just getting to this point. Signs of burnout are starting to appear and any suggestion that the committee continue working for another year to completely revise all of our documents is a non-starter.

Other associations' governing documents that I've looked at, mostly newer communities less than 15 years old, seem to consist of 30-50 pages. Our declaration is 12 pages and we have one committee member who thinks that's too long. This is the same person who thinks we should be doing background checks on prospective homebuyers and institute a cap on rentals. I ask her who is going to set up all the policies and procedures required to make that happen, and then who's going to do the work to carry them out? We are self-managed. She's quiet for a couple of meetings and then she's right back at it wondering why we don't do background checks like they did in the trailer park she used to live in.

Anyway, thanks again for the replies. No one has been through an amendment process before. The previous group of people that did the amendment threshold amendments a few years back are all gone and if they documented their process then they took all their notes with them when they left.
GenoS
(Florida)

Posts:1319


04/12/2017 2:39 PM  
Posted By JeffT2 on 04/12/2017 8:10 AM
Is there some reason that this section needs a number? The first section can be titled something like Opening Section, Introductory Section, Addition to [CCRs], Opening Addition, 2017 Amendment, First Amendment to [CCRs], or just don't give it a name or number. Add a sentence to the section that says This section shall be referred to as Opening Section (so that other documents can site or refer to the section).

JeffT2, that's an interesting suggestion. One of the paragraphs we wamt to change basically says the article, section, and paragraph captions and numbering are for convenience only and should not be construed to impose any sort of hierarchy on the document as a whole. That is something I'll look into a little further.
RogerB
(Colorado)

Posts:5037


04/12/2017 4:35 PM  
"About 6 years ago the amendatory threshold of voter approval to amend the Big Three governing documents was reduced to a simple majority of the homeowners voting at a meeting with a quorum."

I suggest you check to determine if this in conflict with your state statutes for your CC&Rs. It is probably okay for Bylaws and Rules, but I doubt it would hold up for amendments to the CC&Rs if challenged in Court.
GenoS
(Florida)

Posts:1319


04/13/2017 12:32 AM  
The Florida HOA law, the same one I partially quoted above (in the same paragraph, actually) says a 2/3 vote of approval of all voting interests is required to amend any of the governing documents UNLESS otherwise provided in the governing documents themselves. Ours do provide otherwise: a majority of the board must approve and a majority of the votes cast at an owners' meeting where there is a quorum.

Conceivably, if we exactly achieved a quorum consisting of 30 owners at a members meeting, by a vote of 16-14 the votes of a mere 16 owners could be enough to pass any amendment to any document that would be binding on all 100 lots.
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