JillC
(California)
Posts:26
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| 12/17/2007 10:19 AM |
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I have been fighting my BOD on CCRs parking issue. They decided to change the CCR. They had a vote last week. The amendment did not pass. Now the BOD is going to have another vote because of they said that they did not get enough votes.
Here is the breakdown.
45 memebers
18 in favor of amendment
13 opposed
I think we need 50% plus 1 to pass. So it clearly did not pass. Is it legal for the board to go get another vote? Can they do this over and over again?
Jill |
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DonnaS
(Tennessee)
Posts:5671
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| 12/17/2007 10:28 AM |
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My God Jill,
With 45 members, they can have a parking issue? Let us know what they are trying to pass and what the current CCRs say. What makes them think that they can get a different number count in such a short time.
You will have to check your State Sterling Davis Act to see if there are limitations on revoting. Here, we limit any revote to 1 time per session (1 year) |
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HaroldS
(Arizona)
Posts:904
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| 12/17/2007 11:46 AM |
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Jil - There were actually 27 "no" votes. A non-vote is always counted as a "no" vote. Unless your documents call for counting only those in attendance or who voted.
Most documents require a certain percent of ALL owners to change the CC&Rs. To change CC&Rs is seldom 50% plus 1. Do check your state laws for how frequently an HOA can call for another vote if one was not approved. Harold |
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DonnaS
(Tennessee)
Posts:5671
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| 12/17/2007 11:56 AM |
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Jill,
With only 18 YES votes and as Harold said, 27 NO's, why are they going to redo this. It is a waste of time and money.
If you need 50% plus 1, that is 23 yes votes and that is alot considering what you did achieve. Reread your Bylaw numbers to see how many votes you need--for sure.
And you have sparked my interest. From what to what are they trying to change? |
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JillC
(California)
Posts:26
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| 12/17/2007 2:54 PM |
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I have not found anywhere that states a "non vote" is a "no" vote. Where can I find that? the issue is over parking a midsize truck in our driveway. The CCR's only state storing in not allowed. I don't store I drive it on a daily basis. Not only is it only 45 homes, we are on half acres and our driveway would fit 8 vehicles. We have 3 cars and 3 drivers. they want it parked behind the fence. We dont have room behind the fence because that is where we STORE our RV. I paid a $100.00 fine and have IDR tonight. I hope that we get somewhere. We shall see.
Thanks
Jill |
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RogerB
(Colorado)
Posts:4686
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| 12/17/2007 3:25 PM |
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Jill, often the CC&Rs state to amend it requires approval XX% (often 67%) of all homeowners. So you count the number of approvals divided by the total number of homeowners to determine the percentage. So effectively if an owner does not vote (abstains) it is equivalent to a no vote.
So with 45 owners there are 18 approving, 13 opposing, and 14 abstaining. The approval is 18/45 = 40% and the amendment fails. |
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JillC
(California)
Posts:26
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| 12/18/2007 3:34 PM |
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It does state in the CCR's under "Rights of Institutional Mortgage Holders that it is 67% to vote in favor to amend" Does that count? I do not find anything else except in the civil code that says 50% plus 1 in favor.. Im sooo confused. The board does state in a letter that is going to homeowners that the majority was for it so the "prudent" thing to do is to revote.. I say sour grapes..
Jill |
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MicheleD
(Kentucky)
Posts:4491
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| 12/18/2007 8:47 PM |
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I'm sorry, Jill, but "parking" it daily is the SAME thing as "storing" it.
You are placing it there, for "storage" until the next time you need it. That would probably be overnight, if I'm not mistaken.
So I don't know why they want to change it or what needs to be changed since you are in violation of the CC&R that exists already.
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MicheleD
(Kentucky)
Posts:4491
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| 12/18/2007 8:48 PM |
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Oh, and our CC&Rs do not give any restriction on the number of times something can be "re-voted" on, so if they have the resources, they can vote on this every month if they want to.
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JillC
(California)
Posts:26
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| 12/19/2007 9:45 AM |
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There is a differece between parking and storage.CVC talks about this. Even in that section that talks about storage, it goes on to talk about towing vehicles that are PARKED. So they are not the same.
Also if my truck is "stored' in my driveway and so is 40 others, the others must park behind the fence or in the garage also. The CCRs state RV's, boats, inoperable vehicles, and trucks, that are STORED.
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MicheleD
(Kentucky)
Posts:4491
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| 12/19/2007 10:33 AM |
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No, unfortunately, I would disagree. They are the same.
If you are "parking" it in your driveway overnight, for a few hours, over the weekend, you are "storing" it there until you need it/use it again.
This isn't about splitting hairs.
"storage" has not built in timer. Once you place something in a location until you are to use it again, you are "storing" it.
One can also park there, sure, but the interpretation is valid.
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GeraldT4
Posts:1022
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| 12/19/2007 10:47 AM |
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Posted By HaroldS on 12/17/2007 11:46 AM
Jil - There were actually 27 "no" votes. A non-vote is always counted as a "no" vote. Unless your documents call for counting only those in attendance or who voted.
Most documents require a certain percent of ALL owners to change the CC&Rs. To change CC&Rs is seldom 50% plus 1. Do check your state laws for how frequently an HOA can call for another vote if one was not approved. Harold
HaroldS - A non-vote does not count as a no or yes vote. If a non-vote counted as a vote, as you claim, then it would contribute towards quorum. Given your logic it would meaning every post on HOATalk about complaints of achieving quorum are baseless. Meaning everyone should have counted all those that don't participate as a vote therefore a quorum issue would be non-existent. A non-vote does not count for anything. |
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GeraldT4
Posts:1022
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| 12/19/2007 11:06 AM |
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| JillC - Either way, 67% or 50%, your HOA BOD did not get the necessary percentage to amend. I agree with you on the distinction between storage and parking, and your comparison that if you are storing your vehicle, so is everyone else. |
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DonnaS
(Tennessee)
Posts:5671
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| 12/19/2007 11:18 AM |
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Our Documents say that any vehicle that has not been moved after 72 hours, is then considered stored. It is absurd to consider a vehicle stored for an overnight parking UNLESS your documents state that all vehicles must be kept within an inprovement (aka garage) Ours at my new home require vehicles to be within the improvement, with the garage doors closed except when working within the property or for ingress or egress. |
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HaroldS
(Arizona)
Posts:904
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| 12/19/2007 11:20 AM |
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| "A non-vote does not count for anything." It sure does! We weren't talking about quorums. I don't know why you brought that up. When a certain percentage is required to amend CC&Rs, a non-vote definitely has an impact because it certainly isn't a "yes", so has to be a "no." So you believe the percentage required to pass is based on those who bothered to vote? Wrong. Harold |
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DonnaS
(Tennessee)
Posts:5671
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| 12/19/2007 11:30 AM |
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Harold is absolutely correct.
In any amendment vote, evey member has the right to cast a ballot. When we tally up any votes, there are 3 columns 1)YESs 2)NOs 3)Abstains or No.opinion. Those votes must add up to the total number of membership.No is an automatic no or no opinion, therefore a no. |
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JillC
(California)
Posts:26
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| 12/19/2007 11:43 AM |
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When we took the vote there was a check "yes" or "no". the fact is that 14 members chose not to vote so the amendment did not pass. The board is chosing
to revote because they have made this a personal issue. They have made it clear by telling us that "your truck is different" The fact is that we moved in without these restrictions we were one of the few that read the CCRs before we bought. Have parked here for 4 years and have been harassed for almost 3. We have had several conversations with attorneys. We have been told that we have a very strong case. We just need to decide if we want to pay thousands to defend our rights. It just wrong that a BOD can do what they want to whomever they want and get away with it and we as homeowners have to pay money to defend ourselves. Thanks for everyones imput. It really helps to know we are no insane.
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GeraldT4
Posts:1022
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| 12/19/2007 11:46 AM |
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HaroldS & DonnaS - Both of you choose to count votes in the manner that you do. That logic is disputable. You choose to count a non-vote as a no vote, rather than as a yes vote. Why? What if an owner could not vote because they were out of town, but would have voted yes if they were in town or had appointed someone as a proxy to vote on their behalf? You are assuming the vote means something, which it can not because you are not omniscient and assuming a non-vote has to be something. In any election outside of the HOA microcosm a non-vote does not mean anything.
HaroldS - I referenced quorum to prove my point. If a non-vote counts as a vote (yes or no) than it contributes towards quorum. Given your logic of counting a non-vote, all those HOA posters, and all those living in associations will now be liberated from the burden of owner apathy and trying to achieve quorum to amend or elect, or approve. |
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DonnaS
(Tennessee)
Posts:5671
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| 12/19/2007 11:48 AM |
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Jill,
Would you please send us the statement from your CC&Rs that states about storage of a vehicle? Also, I think that I am believing that storage is not the issue here but a TRUCK being parked. Send us the covenant on truck parking so we can really figure this out. These statements are what count and I think that we are missing some information here. Thanks Jill |
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GeraldT4
Posts:1022
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| 12/19/2007 11:56 AM |
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Posted By RogerB on 12/17/2007 3:25 PM
Jill, often the CC&Rs state to amend it requires approval XX% (often 67%) of all homeowners. So you count the number of approvals divided by the total number of homeowners to determine the percentage. So effectively if an owner does not vote (abstains) it is equivalent to a no vote.
So with 45 owners there are 18 approving, 13 opposing, and 14 abstaining. The approval is 18/45 = 40% and the amendment fails.
RogerB - Given your logic that an abstention is equivalent to a no vote it would mean 18 approving and 27 opposing = 67% and the amendment fails.
A non-vote effectively decreases the chances that an amendment will pass or fail by a certain number. |
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DonnaS
(Tennessee)
Posts:5671
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| 12/19/2007 12:11 PM |
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Gerald,
I own a rental in a 55+ community and am chair of the Documents committee there. We did a short study on how amendments have done within the last 14 years of the community's exhistance.
There have been 21 proposed amendments proposed to the membership at different times. There are 230 homes. 13 amendments have passed with votes just over 67%, which is our requirement and 8 have failed because of lack of voting. We have a consistant 15 to 20% who never vote.
A couple of times, these 15 to 20% votes would have been enough to pass some very important items that were desperately needed for amending but these people just did not seem to grasp what their non vote meant.
So we now have a new plan. The Docs committee goes door to door with the amendments in hand and explain why we need each and every vote. The checkoff list is from the votes that have not shown up in the P.M.s office so we just have the no shows to visit. We just passed 3 very important amendment changes and had (3) THREE missing votes. Perserverance and hard work will always win out. |
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HaroldS
(Arizona)
Posts:904
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| 12/19/2007 12:12 PM |
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Gilbert - you actually VOTE to establish a qourum? You actually vote yes or no to establish a quorum? And here I thought a quorum was composed of live bodies and/or proxies in attendance. Silly me.
You really should invest in the latest (or even an older) vcersion of Robert's Rules. You don't need to listen to me, but you should listen to Donna and Roger. Harold |
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DonnaS
(Tennessee)
Posts:5671
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| 12/19/2007 12:27 PM |
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Gerald,
Below is what a quorum must be consisted of--in Florida and it basically the same in every state with exception to the percentage. It says that----
1) QUORUM; AMENDMENTS.--
(a) Unless a lower number is provided in the bylaws, the percentage of voting interests required to constitute a quorum at a meeting of the members shall be 30 percent of the total voting interests. Unless otherwise provided in this chapter or in the articles of incorporation or bylaws, decisions that require a vote of the members must be made by the concurrence of at least a majority of the voting interests present, in person or by proxy, at a meeting at which a quorum has been attained.
It says that a quorum is 30 percent of the TOTAL VOTING INTEREST and must be IN PERSON OR PROXY. No where are no shows or no votes counted. NO's are only counted for ballots cast on any given amendment where the entire membership is entitled to cast a vote.
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GeraldT4
Posts:1022
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| 12/19/2007 12:39 PM |
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| HaroldS & DonnaS - With all due respect, both of you are not grasping what I am saying, or that the rules you have established in your community do not mean they are the rule for all associations, or my linking the relationship between quorum and a non-vote being counted as a vote and therefore contributing towards something. You choose, repeat, choose to count a non-vote to mean a vote/no vote. You will not, or have not yet provided a reason why you choose a non-vote to mean no and count as a vote, rather than choosing to count it as a yes vote. Robert's Rules mean nothing unless your by-laws state they must be followed. |
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JillC
(California)
Posts:26
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| 12/19/2007 12:52 PM |
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Taken from our CCR
Vehicles:
A reasonable number of trailers, motorhomes, trucks, campers, boasts and other such recreational vehicles, and inoperable vehicles belonging to an owner, may be stored within the project if kept within a fenced side or rear yard area or within an accessory building constructed upon the Lot. Vehicles repairs and maintenance shall not be conducte3d in th private streets or in driveways on the lots, except in an emergency. The Association, through any director or officer may have a vehicle wrongfully parked or parked without authorization in the private streets of the project removed under California Vehicle Code 22658.2 (if signs are posted and if the Association is otherwise in compliance with the provisions of such section)
That is it. If we have to park our truck behind the fence so does every truck used for personal or business use. My truck is a mid-size, about 10,000lbs, and does look defferent because it is a flat bed. Back to the wording. It does not say what kind of truck i.e. trucks with signage, pink trucks, ect. It says TRUCKS. So on the amendment issue they are changing it to try to include my truck and exclude theirs. How can this be done? We had our IDR this week and we tried to compromise by telling them we would cover up signage or we could be grandfathered in. The BOD rep. said he liked the idea of grandfathering us in but does not know how to do it.
Also at the meeting to vote on the amendment, the BOD brought a board with 8x10 photos of Semi trailers and huge20,000 lb water trucks and asked the members "Is this what you want your community to look like?" I have found it only takes one person that as she stated "I dont like to stop at the stop sign and see your truck in your driveway everyday" to put the whole community in an uproar and divide friends. All because it makes her feel powerful.
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GeraldT4
Posts:1022
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| 12/19/2007 1:00 PM |
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| JillC - Your cc&r states may be stored ...if kept within a fenced side or rear yard. You are therefore not in compliance along with everyone else, plain and simple. It seems you are being singled out but two wrongs do not make a right. |
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MicheleD
(Kentucky)
Posts:4491
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| 12/19/2007 1:39 PM |
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GeraldT, yes, they are. That is the point.
If someone pulls their car into their garage, they are storing it in the garage until the next time they use it. They are also parking it there. The definitions are not mutually exclusive. There is not inherent "either/or" about them.
They are synonyms.
Conversely, if you do NOT park your car (truck, motorcycle, whatever) in the garage, but on your driveway instead, you are opting to "store" "park" "place for safekeeping" "position" "put" "station" "leave" etc, the vehicle in that location.
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HaroldS
(Arizona)
Posts:904
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| 12/19/2007 2:03 PM |
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| Donna - we are wasting our time. Harold |
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DonnaS
(Tennessee)
Posts:5671
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| 12/19/2007 2:25 PM |
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Yes we are Harold.
Michelle, You are splitting hairs here. The definition of stored is too ambiguous and certainly not stated in their documents. As I said, my docs say that anything not moved for 72 hours is then considered stored. Our definition, their definition??? Who knows what it means. |
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MicheleD
(Kentucky)
Posts:4491
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| 12/19/2007 3:04 PM |
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With all due respect, I am not the one splitting hairs here.
Your docs spell out what is considered "stored."
Our docs do not. However, our docs do give the board the discretion to interpret.
And since "stored" and "parked" are, in fact, synonyms of each other, they are treated interchangeably by our board.
We also look at intent of the restriction, in this case the intent is to keep certain vehicles out of the common view.
Therefore, a commercial vehicle can be "stored" or "kept" on a lot, as long as it is "stored" in the "garage or basement," even if they only "store/park/keep" the commercial vehicle on the driveway overnight and then move it the next day because they are then "using" it. Don't think we haven't had people question the inclusion of the word "basement" either. The only thing we can figure is that was to allow people to "store," "park," "keep," boats, trailers, comm vehicles, etc, inside a building (since outbuildings were not allowed), and many people have "walkout" basements.
A vehicle "stored" on the driveway while not in use and left there until such time as it will be used again is a valid interpretation, as decided by our board, and it is and has been enforceable as such.
Any residents who have challenged the interpretation, discovered their challenge lacking and in any cases where it was challenged, they ended up moving their commercial vehicle or boat.
On the other hand, our CC&Rs don't restrict "trucks," either pick-up, mid-size, SUV, or otherwise. So, there you go.
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