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Subject: A sticky mess
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Author Messages
SteveH
(North Carolina)

Posts:10


11/07/2005 7:40 PM  
Background:

I am the new president of an HOA that has not been in existence for the last 15 or so years. With that much time, few residents are around that were then and those had nothing to do with anything. To avoid complications with the old association, we are simply starting over again and the only encumbrances should be the covenants that transferred with the properties.

I am in the midst of finding out lots of new and exciting stuff like that we have to file a tax return. But my questions go more towards bylaws and covenants.

The proposed bylaws indicate a residence requirement of 67% approval to change the bylaws. However, the one thing that we have going for us now is the fact that these bylaws are not in place, and I think we should be fine with a simple majority. However:

1) Do we need to get a simple majority of ALL homeowners to pass the bylaws, or without any requirement to the contrary, can we make it a simple majority of all those who decide to vote?

2) Most of the new covenants that we want are not even addressed in the old covenants. The old one requires 75% to change. BUT… can we also elect a new set of covenants that don’t change the old set? (There would then be two sets of covenants.) Or must we modify the existing ones because if it wasn’t disallowed, then it is allowed? If we can have two sets that do not conflict with each other, we can pass the second set by a simple majority. However, we barely have 75% resident homeowners as it is. Finding 75% that live there, are home, aren’t jerks, care enough, and agree with the changes would be a nightmare.

Anything you can answer to help is greatly appreciated.
LisaS
(Illinois)

Posts:341


11/08/2005 4:11 PM  
If you currently have covenants that are legally recorded and not expired (some have a governing term stated), then you are required to follow them and get your 75% vote in order to change or replace them. They are a legal document.

You can add bylaws, but they can't contradict or change what is already written (exception is portions that are now illegal that were not when it was written). Perhaps you could work within what you have and simply add on the bylaws? Then, have a meeting of the membership and prior to it send the proposed changes. Even if you can't get 75% of the people at the meeting you could send out proxies or mail in ballots of some sort.
BobD


Posts:0


11/21/2005 3:27 AM  
I would think the first thing you need to do is hire a good attorney for your association to help you with the new documents.There are too many pitfalls for the average person to try to interpret laws governing your situation.
BobD
RogerB
(Colorado)

Posts:5067


11/21/2005 7:19 AM  
If your HOA is a Colorado Common Interest Ownership Community, then after January 1, 2006 when SB-100 goes into effect, you will only need 67% approval of all unit owners rather than the 75% listed in your Declaration to amend your Declaration. To remove an possibility of conflict with the current Declaration, the Declaration can be amended in it's entirety. I have done this.

With regards to amending the Bylaws it depends on what your current Bylaws state. They often require only a simple majority of those members voting at a duly called meeting at which a quorum is present. Amending the Bylaws is usually much easier than amending the Declaration; however, if the Bylaws conflict with the Declaration then the Declaration prevails.

Hope this helps,
Roger
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