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Subject: Changes to Bylaws, Declarations, Restrictions - Is it legal
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CaseyD1
(Missouri)

Posts:6


07/16/2019 5:05 AM  
Our documents say they are binding under Dec. 31, 2019. The hoa is having a meeting this week to amend all documents. They are posting that questions will be taken and voting of the new docs will happen at the meeting.

Can they have the vote at the meeting of only the people at the meeting if the Declarations of restrictions and homes association declarations say the following or do they need 2/3 of the entire lots?

* This Declaration may be terminated, and all of the land now or hereafter affected may be released from all of the terms and provisions thereof, by the owners of two-thirds (2/3) of the lots then subject thereto executing and acknowledging in appropriate agreementor agreements for that purpose and filing the same for records in the office of the Recorder of Deeds.

* Declaration of restrictions: Each of the restrictions as herein set forth shall continue and be binding upon the Developer, and upon its successors and assigns, until December 31, 2019, and shall automatically be continued thereafter for successive intervals of ten (10) years each, provided, however, that the owners of the fee simple title to more than two-thirds (2/3) of all of the lots hereby restricted may release all of the land which is hereby restricted from any one or more of the restrictions herein set forth at any time by executing and acknowledging an appropriate agreement or agreements in writing for such purpose and filing the same for record in the office of the Recorder of Deeds.

* I believe the The Bylaws can be changed at the meeting: These Bylaws may be altered, amended or repealed in any of the following ways (i) by a 2/3 vote of the total votes of the Class A and Class B of the association present at a meeting at which a quorum is present or (ii) by 2/3 vote of the Board of Directors both of which require the approval of the Class B memeber so long as Class B membership exists.
SheliaH
(Indiana)

Posts:2623


07/16/2019 5:22 AM  
It's legal - provided it's done according to your documents. It appears you need 2/3s of homeowners to decide if they want to continue to be an association, so start with encouraging everyone to attend the meeting so you'll have the numbers (I don't know what that class A or B stuff is about, so you'll need to keep reading to see if everyone has the same voting rights). Hopefully, the association attorney will also be at the meeting to answer questions if some come up regarding the documents and what they really mean.

A better question might be how to handle owners who may not be able to attend (although I think everyone should make the effort to do so, considering the seriousness of what you're being asked to vote for). Do your documents allow for use of proxies? If so, what are those policies and procedures and how is the Association taking steps to ensure the proxies are used properly - take that question to your board of directors and see what they say.

CaseyD1
(Missouri)

Posts:6


07/16/2019 6:14 AM  
Thank you. Unfortunately, there is no association attorney, the wife of the president re-wrote the documents.
To clarify for example, there are approx. 265 homeowners in the association, if only 50 people show up to the meeting and there are not enough proxies does that mean the HOA can not pass the Declaration and Restrictions since it calls for 2/3s and there is around 265 people in the association?

Class A are the member of each lot and Class B is the developer.
PestY
(South Carolina)

Posts:77


07/16/2019 7:04 AM  
It will require 2/3 of the TOTAL 'homes' (assuming one vote per home) to actually vote AYE to amend / change the Covenants and Restrictions.

A 'non vote' counts as a NAY. A 'no show' counts as a NAY.

For CCR purposes there is NO QUORUM - 2/3 of the TOTAL homes/membership MUST vote AYE.

Every homeowner is a member, BUT, there is most likely only 1 vote per home.




As for the bylaws governing your corporate operations:

A quorum will be defined within same.
CathyA3
(Ohio)

Posts:339


07/16/2019 8:05 AM  
Posted By CaseyD1 on 07/16/2019 6:14 AM
Thank you. Unfortunately, there is no association attorney, the wife of the president re-wrote the documents.
To clarify for example, there are approx. 265 homeowners in the association, if only 50 people show up to the meeting and there are not enough proxies does that mean the HOA can not pass the Declaration and Restrictions since it calls for 2/3s and there is around 265 people in the association?

Class A are the member of each lot and Class B is the developer.




Not involving an attorney in drafting the amendments is asking for a lawsuit. Besides being knowledgeable about state HOA law, they are often familiar with case law that affects HOAs and would be able to advise the board members on which of their pet ideas is likely to get shot down by a judge. And the wording of the amendments is important. It's very easy for a lay person to introduce ambiguities and unintended consequences that can make enforcement of your governing laws either difficult or impossible. The governing documents for an HOA are written in legalese, not plain English, for this reason. You can either pay the attorney up front for his advice and guidance, or you can pay him when you go to court to defend yourselves.
AugustinD


Posts:1886


07/16/2019 8:33 AM  
I agree with CathyA3. Get an attorney to review and edit whatever changes the Board or members want. Many years ago a former HOA of mine had a Board that wanted to amend the CC&Rs. The Board wanted the CC&Rs changed so that, "They mean what they say and they say what they mean." I think a fair translation of this is, 'get rid of the legalese.' But to me, this attitude demonstrated their ignorance of real estate law and why legal writing is the way it is.
KerryL1
(California)

Posts:6541


07/16/2019 9:23 AM  
I agree with Cathy & Augustine. You really must have an HOA attorney guide the board. How many are on it?

And Pesty's right too. 2/3 of all homes most vote to approve.
CaseyD1
(Missouri)

Posts:6


07/16/2019 9:54 AM  
Thanks for all the guidance. There are items that I am not sure if legal or illegal such as:

Any interest in real property which may vest at any time in the future as a result of this Declaration shall vest, if at all, within the longer of (i) 21 years of the death of the last to survive of the now-living descendants of Donal Trump, 45th President of the United States of America or (ii) such longer vesting period as is allowed by law. Notwithstanding anything in this Declaration to the contrary, the term of this Declaration shall not expire until the vacation of the Plat creating the community.

As a homeowner in the association is it better to have a attorney review and we pay or question the association about them finding an attorney have it the association attorney review new docs?
JohnC46
(South Carolina)

Posts:8563


07/16/2019 10:13 AM  
Casey

You will need 2/3rds of all owners (2/3rds of 265 is 177) agreeing as in saying yes to make any changes.

Why do your docs need to be rewritten? Having a lawyer rewrite the docs would cost at least a few thousand dollars. We looked at having ours rewritten to eliminate reference to the Declarant and to simplify them. Once we saw the cost we said no way.

Having some lay person rewrite the docs is sheer lunacy.

There might be one other issue. I expect your docs call for an amount of owners to establish a Quorum in order for a meeting to be held.The owners can be there in person or via Proxy but a specific amount is required.

Basically I say your BOD cannot do what they want to do and on top of that. They are crazy for trying to do it.
CaseyD1
(Missouri)

Posts:6


07/16/2019 10:34 AM  
JohnC46, Thank you.

The original documents say that the duration of the restrictions are until December 31, 2019 and shall automatically be continued thereafter for successive intervals of 10 years each.

The HOA board says they are trying to simplify the docs but the original docs are only 8 pages and the new docs are 38 pages. Don't see how that is simplifying! They are not paying a lawyer to rewrite the docs. The wife of the president rewrote them and you can tell it is all pulled from different google sites. Like the "longer of 21 years of the death of the last to survive of the now-living descendant of Donald Trump." (So if his youngest son Barron lives until he is 80 years old, you add another 21 years on top of that. That's 88 years from now)

There is a lot of hidden items that are to benefit the HOA not the owners put into it that you would not know unless read all the way through. They are also notifying the homeowners that the vote will be at the meeting and by proxie. Not saying anything about the 2/3 of all homeowners. So people think if you don't go or you don't vote by proxie it can pass with only those people who did vote.

KerryL1
(California)

Posts:6541


07/16/2019 10:58 AM  
Casey, your HOA is a hot mess and the board does NOT know what it's doing, or it does and hopes Owners will simply let the gt away with this nonsense.

(Say, wait, I'm now thinking this is spam as surely no rewrite would include anything about Prez Trump.)

To avoid confusion, it's important that everyone repeat "2/3 of all lots (or "homes") must approve." When folks wrote 2/3 of all Owners, it makes it sound as if two persons who own one lot together each have one vote.

If you're for real, Casey, yes, I think you and several others should band together and pay an HOA attorney for a couple of hours of their time. May total $500. Please r-read Cathy & Augustin's posts.
CaseyD1
(Missouri)

Posts:6


07/16/2019 11:14 AM  
Unfortunately this is not spam. I wish it was cause I agree that it is nonsense. Attached is the page about the 45th President that is in the docs they want to pass.

Attachment: 1716141279871.pdf

GenoS
(Florida)

Posts:3135


07/16/2019 10:23 PM  
Posted By JohnC46 on 07/16/2019 10:13 AM
Why do your docs need to be rewritten? Having a lawyer rewrite the docs would cost at least a few thousand dollars. We looked at having ours rewritten to eliminate reference to the Declarant and to simplify them. Once we saw the cost we said no way.

Having some lay person rewrite the docs is sheer lunacy.

My HOA amended its CC&Rs in 2017 to clarify animal/pet restrictions and define what behavior of animals would be considered a nuisance. Attorney preparation wound up costing us $3,800. We had other amendments we wanted to pursue but after seeing the cost of the almost-trivial pet amendment we put on the brakes. We got a new attorney the following year but have been gun-shy about having him advise us on the other changes due to cost. Neither attorney was willing to even give us an estimate of what it would cost us and we were willing to settle for a rough number plus-or-minus $10,000. They refused to do it even though we said we wouldn't hold them to such an estimate.

We considered drawing up our own amendments, which seems to have been more common 30 years ago, but when you really get down to the nitty gritty you're asking for trouble if things go wrong.
PestY
(South Carolina)

Posts:77


07/17/2019 7:14 AM  
Posted By CaseyD1 on 07/16/2019 11:14 AM
Unfortunately this is not spam. I wish it was cause I agree that it is nonsense. Attached is the page about the 45th President that is in the docs they want to pass.





T'was Brillig and the Slithey Toves, did gyre and gimbel in the wabe ......
IanK1
(Florida)

Posts:7


07/21/2019 7:44 AM  
Does a Florida HOA have to have an attorney do a simple "re-write" of Governing
Documents to make them more legible? No changes/additions/deletions to the Governing
Documents will me made. Is there a process by which the HOA can do this without
an attorney and Documents retain their "legal status?" If not, why not and, where
does it state this? Please, no opinions. I'm looking for something that states the
Association can do a "re-write" on their own without having to hire an attorney.
Again, a simple "re-write" for ease of reading...no changes to Governing Documents!
KerryL1
(California)

Posts:6541


07/21/2019 8:02 AM  
You'd get more responses if you'd start a new thread, Ian.
GenoS
(Florida)

Posts:3135


07/21/2019 8:40 PM  
Yes, Ian, please do. While waiting for that I'll just add that you will only find opinions here.
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