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Subject: Errors made in CC&Rs
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Author Messages
ElaineJ1
(California)

Posts:20


03/13/2019 3:38 PM  
Our CC&Rs were revised by a group of amateur volunteers; they added new restrictions (such as size of permitted trees) that were not there in the previous document. In other words, they place restrictions on properties that had not been previously present. I do not believe that such changes can be made to CC&Rs without 100% of the owners agreeing, in writing. Instead, when they had satisfied the quorum, they simply went ahead and had the documents recorded evidently because they were unaware that such increased restrictions will require 100% membership "siging on". Quite a number of the owners either voted against these restrictions, or didn't sign anything or vote at all. Am I correct? and if I am correct, how does one go about getting these errors corrected?
RichardP13
(California)

Posts:3362


03/13/2019 3:57 PM  
Approval may or may not require 100%, it depends on how the CCR amendment process work for your HOA. BUT, any changes MUST be approved via a secret ballot. The typical approval rate is 66 2/3% in the affirmative. Quorum is usually a majority of 50% plus 1, but that really doesn't matter when you have to have at least 66 2/3% yes votes. Any changes would have had to go to the membership for a 30 day comment before the Board could say send it to a secret ballot vote.

What should be recorded is a document signed and notarized by the Secretary as to how the vote was passed.
MelissaP1
(Alabama)

Posts:7932


03/13/2019 3:57 PM  
What does your CC&R's say is the required voting to make a change? Do they also require a special meeting? It's not untypical for them to require a special meeting or membership vote of only 75 - 100%. They are usually higher than just the By-laws for required vote.

With someone with experience with tree sizes, our HOA did a similar thing. Believe me, wish we had such a rule at the beginning. We now have towering pine trees with a bug infestation towering over homes at the border. 1 fell on a house crushing the dining/kitchen area. The Bradford Pears would not have been planted...

So what is the issue with the tree size as it is a good idea?

Former HOA President
KerryL1
(California)

Posts:6251


03/14/2019 8:43 AM  
Yes, Elaine. What do your CC&Rs say about amending them?

As Richard said, you must send out a secret ballot, have inspectors of election count them, etc. There are strict rules for election in the Davis-Stirling Act too.

What do you mean by "sign them?" Sign what? In CA Associations, owners only sign the outer envelope.
ElaineJ1
(California)

Posts:20


03/14/2019 9:27 AM  
Making changes that directly impact what one may do with one's properties requires signatures; it is equivalent to changing a deed even when it is in CC&Rs! 100% of owners would have to sign the document. Our board obviously did not realize that and passed an "amended" CC&R with many changes (restriction on fences, trees, etc. such restrictions that did not exist in the previous CC&Rs at all). I am told that just having the required quorum in favor is not adequate. 100% of owners would have to sign their assent to ratify such things; since it was not done properly, the CC&RS are "in limbo". What they did was like having taken property rights away without the owners' permissions. This was done several years ago; the "CC&R writers" were volunteer amateurs who thought they did not need professional help. My understanding is that until "discovery", there is no statute of limitations, and after it is discovered (within past month), the statute of limitations is three years.
ElaineJ1
(California)

Posts:20


03/14/2019 9:36 AM  
Please note that if you explore the sorts of changes that can be made through amending or re-writing CC&Rs, you will find that the permitted changes do NOT include things such as adding restrictions that impact property use as an owner. It's like having others decide to take away your own property rights that were there when you acquired the property. Here is a list of changes that CAN be made through amendments of cc&Rs:
1. Remove inapplicable developer provisions.
2. Clarify ambiguous or hard-to-understand language
3. Update for federal and state law changes.
4. Update for federal, state, and local regulations (antennas, solar panels, biennial age verification)
5. Change term limits for board; or disallow spouses on same board, for example
6. Correct errors or inapplicable provisions due to law or regulations (example: limits on special assessments or type of money accounts)
7. Lowering quorum requirements, making future amendments easier

Anything that impacts property rights must have 100% written permission from all owners.

GenoS
(Florida)

Posts:2770


03/14/2019 10:03 AM  
Posted By ElaineJ1 on 03/14/2019 9:27 AM
Making changes that directly impact what one may do with one's properties requires signatures; it is equivalent to changing a deed even when it is in CC&Rs! 100% of owners would have to sign the document.

Not always. It's a common misperception that certain changes to the CC&Rs have to be approved by 100% of the owners. In very specific cases, such as dissolving the HOA, or buying or selling real property, or a significant alteration to the common elements, or re-purposing the use of an amenity, then maybe, just maybe, a 100% vote of approval would be necessary.

Changes to "what one may do with one's properties" in a general sense probably do not requre unanimous approval. Check your documents carefully and see what Davis-Sterling has to say.
GeorgeS21
(Florida)

Posts:1065


03/14/2019 11:04 AM  
Has Elaine provided the requested language from her CCRs?
ElaineJ1
(California)

Posts:20


03/14/2019 11:06 AM  
Davis-Stirling is usually very helpful, but has nothing that applies to this situation. Our properties were severely impacted by addition of a number of items relating to property rights. Severe restrictions were created where there had been none at all. I know of one owner who has recently been forced to spend over $9000 to defend a healthy oak tree that is 50 years old, planted during the earlier non-restrictive CC&Rs and not blocking any "views". The non-restrictive original CC&Rs were in effect for two decades prior to the restrictive "changes". In fact, as one reads through the current CC&Rs it is easy to see what was tacked on by amateur CC&R "re-writers", because it does not use standard legal syntax. Numerous examples such as "You may not..." rather than "shall not"; or "it should" rather than "it shall". Even though our boards have spent over $100,000 during the past 4 years in attorney fees in defending these poorly-written restrictions, the general population (avg. age 74) thinks that "revising the CC&Rs costs too much". (I am NOT kidding.) Go figure that! (As one person has stated "senility rules.") Plus - the current board's very reputable attorney (Epsten Grinnell & Howell) insists that anything changing real property rights does INDEED require a 100% signed permission to be valid, thus expanding difficulties in repairing what we have; unless,of course, we apply EG&H's same reasoning to their faulty creation, for the purpose of decertifying the current messed-up-CC&Rs. He says that 100% signatures is a "requirement" for the sorts of changes that are needed - though no one paid attention to that requirement in the past when it was ignored. We need a "fix".
GenoS
(Florida)

Posts:2770


03/14/2019 1:33 PM  
Posted By ElaineJ1 on 03/14/2019 11:06 AM
... the general population (avg. age 74) thinks that "revising the CC&Rs costs too much". (I am NOT kidding.) Go figure that!

Not surprising at all. We deal with that here frequently.
KerryL1
(California)

Posts:6251


03/14/2019 1:43 PM  
Look, Elaine, you must cite your CC&R's article & section for amending them. I'm not buying that they're silent on the % required to amend them.

If by canoe they are silent, then have Your HOA attorneys cite THEIR source.

Btw, the list you provided appears to involve bylaws, not CC&Rs.

Are you on the Board?
ElaineJ1
(California)

Posts:20


03/14/2019 1:49 PM  
Thanks, GenoS; I would be happy to put the "requirements" for amending CC&Rs on this post, but they are extremely standard and follow the CA laws - I was on the board for 4 years 2008-2012. The problem is what to do about "garbage" that was inserted (before I was on the board), but not (at least according to the attorney's standards?) properly ratified. It's as though no one can cope with the idea that things were NOT done properly, but their ideas on how to get fix it (requiring 100% of owners signing - hey, no way!) are incredibly complex; indeed impossible! Certainly the ages and the apathy are a major part of the problem. Probably easier just to sell the house and move... It shouldn't be that way, but it is.
ElaineJ1
(California)

Posts:20


03/14/2019 1:58 PM  
Krry1 - The quorums, etc. are clearly stated for amending CC&Rs, and they are very standard. The problem is that the attorney states that "signed permission by 100% of owners" is required - even though when the problems were added to the CC&Rs, it was done with the ordinary quorums. Another attorney independently tells me that you CANNOT change basic uses of real property through CC&Rs, and agrees with the board's attorney about the 100% requirement, even though it was NOT done when the problems were added to the CC&Rs. This has to do with basic law about real estate titles; remember that your CC&Rs are, in effect,an extension of your original deed. The requirement would thus is the same requirement as tacking something extra onto your deed. Most boards have no idea about this, but if you carefully inspect professional postings about what items ARE subject to CC&R change, you will find that they are far from limitless! I listed them above.
ElaineJ1
(California)

Posts:20


03/14/2019 2:24 PM  
KerryL1; Yes, I always believed that what was in the CC&Rs covered everything in the way of changes, but now I have 2 attorneys tell me otherwise. So...Should I contact 9 attorneys and take the advice of the majority?? Both of these attorneys are known to be reliable with honest reputations. They say that the problem cannot be fixed by a ballot voted by the prescribed quorum, because the nature of the changes is equivalent to "two people voting to take away the real property rights of a third without the third's written permission." "If the right to have trees is restricted when it was not restricted before, this violates something called the 'statute of frauds.'" I'm NOT making this up. (It is complex and I have no answers and I'm very happy I'm a librarian and not an attorney!!) Logically, if it was possible to place these "garbage items" in the CC&Rs by a vote, then you'd think it would also be possible to remove them by a vote, wouldn't you? but they both say no.
RoyalP
(South Carolina)

Posts:511


03/14/2019 2:41 PM  
Their exists a legal principle of 'equity'.

Simple amendments EASING or MODIFYING existing contractual restrictions may be made by majority or super-majority vote as specified within the contract.

however

The ADDITION of 'onerous' restrictions (such as banning renting) where none existed before has been found to require 100% agreement by the 'contractees' who purchased subject to RECORDED restrictions.


The attorney is most probably correct.
JeffT2
(Iowa)

Posts:442


03/14/2019 2:57 PM  
Posted By ElaineJ1 on 03/14/2019 11:06 AM
... I know of one owner who has recently been forced to spend over $9000 to defend a healthy oak tree that is 50 years old, planted during the earlier non-restrictive CC&Rs and not blocking any "views". ..... Even though our boards have spent over $100,000 during the past 4 years in attorney fees in defending these poorly-written restrictions, the general population (avg. age 74) thinks that "revising the CC&Rs costs too much".



And were there any actual written decisions by the courts in these cases that can be obtained and quoted that agree with the attorneys?
ElaineJ1
(California)

Posts:20


03/14/2019 3:36 PM  
Royal: The friend who spent $9,000 - was spent for advice and guidance when the then-board persistently threatened her. I think she should have answered them in superior court, but they finally agreed to back off. As you probably can imagine, the individual who complained constantly about the 50 year old oak tree is, well, "not right between the ears". The board stupidly thought they could satisfy her by going her neighbor's 50-year-old oak tree. Boards when I served would have put a fast stop to the nonsense before they accumulated at least a ream of complaints, but not the board here.
ElaineJ1
(California)

Posts:20


03/14/2019 3:41 PM  
Only in the past week have we found evidence that the board who put the problem restrictions in the CC&Rs did NOT get 100% agreement, even though they were adding these tree restrictions where NONE existed. Now the attorney says we need to have 100% in order to reverse them... Why? Because we would be taking value from folks who now enjoy absence of trees. So it is a complete fiasco - what's good for the goose will obviously poison the gander, that seems to be the way it is figured, perhaps?
ElaineJ1
(California)

Posts:20


03/14/2019 3:49 PM  
RoyalP - yes exactly! "Onerous" restrictions were added without a 100% signed vote. No one knew to question them. In fact they were written by some volunteer amateurs, who didn't consult an attorney until it came time to vote on them! Probably the attorney had no idea that they were adding restrictions where none had existed. So now, very recently we figure it out, and "bingo!" - they cannot be reversed unless there is that 100% signed vote. You have put your finger on the problem. The only slight bit of hope is that since we just discovered this fiasco, the "statute of limitations" of three years is just beginning NOW, with the discovery. So, the problem now is figuring out some way to "unwind" the Gordian Knot.
Thank ALL of you very much!
GenoS
(Florida)

Posts:2770


03/15/2019 10:49 AM  
Posted By RoyalP on 03/14/2019 2:41 PM
The ADDITION of 'onerous' restrictions (such as banning renting) where none existed before has been found to require 100% agreement by the 'contractees' who purchased subject to RECORDED restrictions.

Banning renting does not require 100% owner approval in Florida. In the notorious "Woodside" case, the Florida Supreme Court said:

We note that the majority of courts in other jurisdictions have held that a duly adopted amendment restricting occupancy or leasing is binding upon unit owners who purchased their units before the amendment was effective.

...

To hold otherwise, we would have to conclude that the right to amend a Declaration of Condominium is substantially limited, well beyond those limitations imposed by the legislature in §718.110(4) and (8).



Interesting article on this at floridabar.org.
RoyalP
(South Carolina)

Posts:511


03/15/2019 11:57 AM  
Consistent with this statutory scheme, courts have uniformly held that changes to those fundamental property interests identified in the statute can only be accomplished with the concurrence of all of the owners.9 For example, in Theiss v. Island House Association, Inc., 311 So. 2d 142 (Fla. 2d DCA 1975), the court invalidated an amendment to the declaration purporting to change the percentages by which the owners shared in the common expenses without the unanimous consent of the owners. The court stated that in the absence of a statement in the declaration that an owner’s parcel could be modified or changed without his consent, the owners “had a right to rely on the fact that their proportionate obligation to share in the common expenses could not be altered unless they agreed to it.”10


bold section = ?????
ElaineJ1
(California)

Posts:20


03/15/2019 1:01 PM  
royalP - I want to thank you again for your kind replies. They have been very helpful in our getting a grip on where we stand. It remains to be seen what can be done - but at least I now have some hope that there WILL be a solution to a matter that was very puzzling, and definitely not in the "Davis-Stirling" law (in fact I knew its co-author Larry Stirling way-back-when he was on the San Diego City Council.) Yes, that means I am old.
I'm signing off at this point, but will continue to research in the areas you have suggested. Of course California statutes inevitably differ from NC or FL - but the general underlying legal requirements are similar. Thanks again! Elaine
KerryL1
(California)

Posts:6251


03/15/2019 1:05 PM  
Ealins wrote: "I am told that just having the required quorum in favor is not adequate." And, "They say that the problem cannot be fixed by a ballot voted by the prescribed quorum."

But I & others have been asking: What do your CC&Rs say about the % of Owners needed to vote to approve changes to the CC&Rs. I did not ask about "quorum."

I also pointed out that your list of permitted changes seem to refer to bylaws.

I usually agree with RoyP, but the example of common area expenses percentages to Owners being changed seems to be an entirely different matter.

ElaineJ1
(California)

Posts:20


03/15/2019 1:36 PM  
Kerry, like all CC&Rs, they list a quorum to be used for amendments. This quorum is a total number of members voting in favor of the amendment. Like 2/3. or "more than 50%" Of course quorums for election of officers as well as quorum for amending bylaws is less - and stated more like the "majority of a quorum of 300" in favor. As pointed out above, this problem is involved in "equity", and follows legal rules that require 100% signing in favor. It concerned amendments that have proven to be "onerous", and were apparently allowed by a board who did not comprehend the "equity" rules mostly because they did not consult an attorney, presumably.
GeorgeS21
(Florida)

Posts:1065


03/15/2019 3:27 PM  
Kerry,

Am I misreading?

You asked for the language related to CCR modifications, but still did not get this from Elaine?

Elaine ... can you provide the exact, quotes from your CCRs that related to modifications to those CCRs? Pardon the request if you provided this, above, and I missed it.
KerryL1
(California)

Posts:6251


03/15/2019 3:28 PM  
It appears, Elaine, that the definition of quorum is misunderstood. A quorum is the number that must vote for the votes even to be considered. Here in our HOA of 200, quorum is 25%. We never have trouble "making quorum"-50- because of absentee voting being allowed in CA HOAs.

But the % needed for any amendment to our CC&Rs is approval by 67% of all Owners = 134 voting for approval. That is difficult to achieve in and of itself.

For our board of directors, our bylaws and I think CA Corporations Code, too, define a quorum as a simple majority of all directors. That's the number that must be present for business to be conducted. So on our board of 7, 4 must be present to establish quorum. For any motion to be approved, a majority of those present (4 or more) must vote to approve the motion.

I was director for 12 year til late '18 and studied a lot about CA HOAs & almost memorized our own documents (too-unit very complex high rise twin towers). And I simply never have run into this 100% requirement unless the CC&Rs actually require that--and some do. So I'd love to read the case law on it. HOAs often change covenants to something more onerous. Many, and we'll soon follow will ban smoking on our entire premises including inside condo units. We COULD do it with a rule change but have been advised by our neural counsel to include it in our upcoming attempts to change our CC&Rs.

I'm old too, but didn't know L. Stirling was a city councilman. Do know he was a CA assemblyman, and that former Gov. Grey Davis's name is first on The D-S Act because he said, back in the '80s, "Sure, I'll co-sponsor your HOA bill if I can be first author."
ElaineJ1
(California)

Posts:20


03/15/2019 3:53 PM  
Thanks, Kerry - no doubt I was misusing the "quorum" term and you are correct - thanks!... The requirements do indeed function in that manner, of course. "Royal" from SC's understanding is what was needed. The main aim, of course, is to figure out how to fix it. To know that these restrictions were added in one way, but now require 100% of owners for their removal, is more than slightly crazy. Knowing also that the lack of understanding in our population (average age 74) is probably too great to expect that an educational approach will work, we will have to think further. My advice: don't EVER buy anything in a "senior" (over 55) community. That may sound ridiculous coming from an 84-year-old like me, but you heard it here!!
ElaineJ1
(California)

Posts:20


03/15/2019 4:00 PM  
And to George - Our requirements for these changes are very standard, and that is not where the problem lies. As Royal points out, there are matters of "equity" and/or "onerous" changes that require 100% of owners to approve. It seems quite possible that these problem-restrictions fall in that area. The problem is that they were approved just as any amendment would be approved - but now the attorneys say that 100% of owners must approve their removal. Let me further say that since they were written by volunteer amateurs, who should have (but did not) work with an attorney...perhaps that will explain it.
ElaineJ1
(California)

Posts:20


03/15/2019 4:05 PM  
Although there are plenty of errors, we have 410 condo members and 1349 single-lot families - and the documents were set up in a way that requires the condo members to pay 22% of the costs of single-lot area "enforcement". Plus the condos pay all of their own "enforcement costs". I would think that probably qualifies as an "onerous burden" especially since the condo owners did not give it 100% support.
GeorgeS21
(Florida)

Posts:1065


03/15/2019 4:09 PM  
Elaine,

What do your CCRs require for modification?
KerryL1
(California)

Posts:6251


03/15/2019 10:06 PM  
Thank you, George.
ElaineJ1
(California)

Posts:20


03/16/2019 8:49 AM  
George, it would be easy for me to just list these things - but all that would do is change the topic and hide discussion of the problem. The problem is an EQUITY matter that was changed WITHOUT 100% of members voting for it, so I am respectfully declining to list requirements for CC&R amendments for you. You cannot change CC&Rs to require some of your members to pay costs that do not relate to their property: EXAMPLE: The amateur changes made in our CC&Rs have required our condo-members (410) to pay 22% of the costs of enforcing restrictions that apply ONLY to our single-family members (1349). These costs have exceeded $100,000 during the past 4 years. At the same time, the condo-members are still required to pay 100% of their own enforcement costs. It can't possibly be OK to do that, at least I sure don't think so!
GenoS
(Florida)

Posts:2770


03/16/2019 8:59 AM  
Posted By ElaineJ1 on 03/16/2019 8:49 AM
The problem is an EQUITY matter that was changed WITHOUT 100% of members voting for it, so I am respectfully declining to list requirements for CC&R amendments for you.

That sounds to me like you're trying to hide something. Perhaps the debate IS about whether or not your problem is an "equity" matter. You have decided that it is. Maybe it is, maybe it isn't, but you getting to set the parameters and boundaries of debate, what questions are acceptable and which are off-limits, isn't going to help your cause. Very often questions an OP deems irrelevant turn out to be very important after all.
ElaineJ1
(California)

Posts:20


03/16/2019 9:47 AM  
Absolutely nothing to hide; that's silly and accusatory! This is a problem that has been very challenging, and has needlessly cost a lot of people a great deal of money and grief, caused by changes made in CC&Rs by a group of volunteer amateurs who meant well, but didn't understand the law; yes they "followed the rules in the CC&Rs" which conform to the requirements of the Davis-Stirling California laws for amending CC&rs - but they didn't know the equity limitations on what changes may be made by amending CC&Rs with approval of the required percentage of owners and, instead, require 100% approval. It should be a stern warning to have well-qualified attorneys advising whenever ANY amendments are made in ANYONE's CC&Rs. We are learning "the hard way". I would hope that YOU might gain from our experience. Otherwise, what I am writing is indeed silly and useless. Right now we have CC&R items that were passed by a board who didn't realize the items needed 100% owner approval. The attorneys, however, tell us that in order to REVERSE these things, we WILL require 100% of owners to approve. (and that is not possible in a community with average age 74). The only other known approach is apparently to declare the amended CC&rs that did not have 100% approval "null and void" which would then make even older CC&Rs valid (written from 1962-1972!) If you don't understand, then there is no possible way for me to communcate the situation in a manner that you might comprehend, and I apologize for that.
JohnC46
(South Carolina)

Posts:8133


03/16/2019 10:54 AM  
Posted By GenoS on 03/16/2019 8:59 AM
Posted By ElaineJ1 on 03/16/2019 8:49 AM
The problem is an EQUITY matter that was changed WITHOUT 100% of members voting for it, so I am respectfully declining to list requirements for CC&R amendments for you.

That sounds to me like you're trying to hide something. Perhaps the debate IS about whether or not your problem is an "equity" matter. You have decided that it is. Maybe it is, maybe it isn't, but you getting to set the parameters and boundaries of debate, what questions are acceptable and which are off-limits, isn't going to help your cause. Very often questions an OP deems irrelevant turn out to be very important after all.




I agree. She wants people to agree with her no matter what her docs say.
KerryL1
(California)

Posts:6251


03/16/2019 11:28 AM  
Many of us, Elaine, have been reading postings from HOA members and director for several years now. I, at least, get very suspicious when a poster will not answer a simple question: What % of Owners are needed to approve a CC&Rs amendment according to your CC&Rs? It's not a "list"; it's a sentence.

In CA, too, you probably know that if an HOA tries very hard to get enough to vote on a CC&R amendment or rewrite of the CC&Rs, if they collect 50% approval, they can go to court and a judge most likely will approve the amendment(s). I feel certain that your legal advisors informed you of that approach.

I'd appreciate it if you'd give us reference to a case law to which we might read to try to understand the topic of "equity."
ElaineJ1
(California)

Posts:20


03/16/2019 12:19 PM  
Kerry, I have no case law to cite -- all I have is stated opinions of two attorneys; and the scraps of information from "Royal of SC" gives some ways this can happen. In fact even Davis-Stirling.com doesn't have any citations that are helpful. I suspect (or at least HOPE) that this is a rare situation. It is interesting that everyone knows about state laws; everyone's CC&rs carefully conform to their own state laws, as do ours. This situation involves basic property rights and obligations that cannot be changed through CC&R changes; and will require 100% of owners to approve them. That was not recognized, and was not done when these changes were made without consulting good legal advice. One attorney has expressed the opinion that this situation doesn't appear in case law because it is generally prevented by the attorneys who examine proposed CC&R changes. I think he is correct.

You need 100% approval if (example) you were to add strict tree regulations where absolutely NONE had existed before.
You need 100% approval if (example) you were to charge people living in one of your "sub-communities" for expenses that had only to do with an entirely different "sub-community". (That would be like taxing folks in one town for expenses that related only to a different town.)

Both of these errors (and more!) were made by our amateur "CC&R-writers", because they did not require 100% of owner approval. They didn't know any better, obviously. So now the question is "how can it be fixed?"
GeorgeS21
(Florida)

Posts:1065


03/16/2019 2:41 PM  
All,

I would recommend we discontinue this thread until Elaine provides what we have repeatedly requested.

Elaine,

I don't understand this - you have a great opportunity to be above board with us, but apparently don't want to do so.

Until you provide what has been requested I can only surmise you are hiding something.
SueW6
(Michigan)

Posts:458


03/16/2019 3:56 PM  
Elaine
Is there a reason why you use the word “quorum” when you mean “voting threshold” ( which you claim is 100%) to amend your CCRs?

The quorum is the number of people needed who must be present to legally transact business at the meeting. The 100% vote threshold for approval can be achieved by in-person voters, returned ballots, electronic, or proxies, if your rules allow any of these methods.

How to do it?

The ballot can have several motions on it.

1) Motion to rescubd CCR #12 because the vote process was in error (did not meet its approval vote threshold).

2) motion to approve new CCR ....

3. Motion to Rescind CCR concerning tree size.

4. Motion to place tree size regulation in the Architectural Rules and Regulations.
SueW6
(Michigan)

Posts:458


03/16/2019 3:56 PM  
Elaine
Is there a reason why you use the word “quorum” when you mean “voting threshold” ( which you claim is 100%) to amend your CCRs?

The quorum is the number of people needed who must be present to legally transact business at the meeting. The 100% vote threshold for approval can be achieved by in-person voters, returned ballots, electronic, or proxies, if your rules allow any of these methods.

How to do it?

The ballot can have several motions on it.

1) Motion to rescubd CCR #12 because the vote process was in error (did not meet its approval vote threshold).

2) motion to approve new CCR ....

3. Motion to Rescind CCR concerning tree size.

4. Motion to place tree size regulation in the Architectural Rules and Regulations.
SueW6
(Michigan)

Posts:458


03/16/2019 3:57 PM  
#1. Motion to rescind ..
ElaineJ1
(California)

Posts:20


03/16/2019 6:52 PM  
SueW there are some things (major changes) that require 100% of membership in order to ratify in CC&Rs amendments. For example, you couldn't suddenly require everyone to have "red roofs" or "pink fences" if the previous CC&Rs had no such restrictions unless you had 100% approval! Acceptable changes to CC&Rs are listed in many reliable professional websites. Example: Our volunteers (without legal assistance, alas) made CC&Rs that require a group of our condo owners to pay for "enforcement" that does not concern their own properties at all -- in fact they are required to pay for enforcement in a single-lot area, PLUS also pay for enforcement within their own condo! Needless to say, they did NOT have 100% approval for that. They also tacked very strict "tree controls" in a large area that previously did not have ANY tree restrictions since its inception two decades earlier. That, too, requires 100%. Problem is that they didn't understand; thought they could do anything just by amending CC&Rs, and so did not get the 100% of owners required to approve in these situations. Since the board didn't know any better they went ahead and recorded and began enforcement! What an ungodly mess. Hoping to warn others about this, that's all. I am signing off - can't reply further due to health problems.
GeorgeS21
(Florida)

Posts:1065


03/16/2019 6:57 PM  
Right.
GenoS
(Florida)

Posts:2770


03/17/2019 9:07 AM  
Posted By ElaineJ1 on 03/16/2019 6:52 PM
For example, you couldn't suddenly require everyone to have "red roofs" or "pink fences" if the previous CC&Rs had no such restrictions unless you had 100% approval!

Wrong.

Posted By ElaineJ1 on 03/16/2019 6:52 PM
They also tacked very strict "tree controls" in a large area that previously did not have ANY tree restrictions since its inception two decades earlier. That, too, requires 100%.

Nope.

I wish you good luck with your health.
JohnC46
(South Carolina)

Posts:8133


03/17/2019 9:42 AM  
Elaine

Scream 100% as loud and as much as you wna\ant but until you show us proof, you are wasting our time. Bye.
ElaineJ1
(California)

Posts:20


03/17/2019 10:41 AM  
JohnC -insulting me won't help. ALL HOAs should carefully check with their attorneys before changing CC&Rs; it's a warning for everyone in an HOA. Otherwise, what would prevent, say, an amendment allowing horses on each property - or requiring all houses to be painted orange? Or, in our case, amendments were actually "approved" by the required percentage (MUCH less than 100%) that caused the restriction enforcements for the single-family homes to be paid by the nearby condos?
RoyalP
(South Carolina)

Posts:511


03/17/2019 10:51 AM  
Posted By ElaineJ1 on 03/17/2019 10:41 AM
JohnC -insulting me won't help. ALL HOAs should carefully check with their attorneys before changing CC&Rs; it's a warning for everyone in an HOA. Otherwise, what would prevent, say, an amendment allowing horses on each property - or requiring all houses to be painted orange? Or, in our case, amendments were actually "approved" by the required percentage (MUCH less than 100%) that caused the restriction enforcements for the single-family homes to be paid by the nearby condos?





NOTHING


that is a major argument against the HOA concept





however

unless the change is actually found by a court to be onerous after a LENGTHY and EXPENSIVE trial it WILL STAND





unless you are prepared to shell out a HUGE retainer you are 'stuck' with the amendment






next time: CAVEAT EMPTOR
JohnC46
(South Carolina)

Posts:8133


03/17/2019 1:43 PM  
FYI

In our standalone homes HOA we have 112 owners. It takes 66% (74 of 112) of all owners agreeing to any Covenant change. If only 73 or less agree, the suggested change fails.

It takes 51% (57 of 112) of all owners agreeing to any Bylaw change. If only 57 or less agree, the suggested change fails.

I am comfortable with those requirements. I believe those % are strong enough to stop any fringe element.

In IL (and other states I assume), 80% of owners can agree to selling the entire HOA to a buyer.

If one stood on a corner giving out $100.00 bills to the first 100 that passed by, I assure you at least one or more would refuse it. Even in such a free giveaway, you would play he!! getting 100% to agree to anything.
GenoS
(Florida)

Posts:2770


03/17/2019 5:03 PM  
Our former Treasurer used to say if the Board stood in front of the Clubhouse giving away $100 bills there would be people complaining that it wasn't $200.
KerryL1
(California)

Posts:6251


03/17/2019 5:22 PM  
Believe it or not, Elaine, I'm still trying to understand your situation and your won't tell us the % needed for approval to approval CC&R amendments.

But I'm also trying to grasp what "restriction enforcements" are. Can you define for me?
GeorgeS21
(Florida)

Posts:1065


03/17/2019 5:27 PM  
Kerry,

The mystery is probably driving you to keep asking Elaine :-)

She has not been cooperative - there must be a reason.
RoyalP
(South Carolina)

Posts:511


03/18/2019 7:22 PM  
? reason ?

you are joking

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Forums > Homeowner Association > HOA Discussions > Errors made in CC&Rs



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