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Subject: CCR Termination vs. Amendments
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BrianK13
(Indiana)

Posts:94


01/27/2020 8:37 AM  
After 20 years, our CCR's may be amended by 67% approval (of all owners), but any covenant may be *terminated* with only a 51% approval (much easier to obtain).

We're wanting to change "No Sheds" clause into "No Sheds, except for ones that comply with these specs: ...". And so we're terminating the prohibition against Sheds of a certain type.

Most HOA's would interpret this as an "amendment", but we're going to more appropriately frame this as a "termination" so that we can pass it with 51% vote instead of 67%.

Keep in mind that with 51% vote, we could allow ALL SHEDS. So it wouldn't make sense to require 67% vote to allow SOME SHEDS (making a smaller change).

Here is a draft of the wording we may use:
==
Termination #1 - Sheds:
Section 8 of the CCR's reads: "No trailers, shacks, outhouses or detached or unenclosed storage sheds, tool sheds or accessory buildings of any kind shall be erected..."

Termination:
Section 8 shall not prohibit the erection of sheds which comply with all of the following specs:
- Less than 150 sqFt. (e.g. 10’x15’)
- Shorter than 10’ in height at peak.
- Constructed of wood or high quality non-fading resin with steel framing.
- If wooden, must be painted and shingled to match the associated home.
- Is subjected to approval or disapproval by the Architecture Review Committee (ARC).
- Shall be well-maintained, per discretion of the ARC.
===

By appropriately framing this as a "termination", instead of an "amendment", we can thereby pass this termination with only 51% vote.

More Detail:
- Our HOA is lazy; we can typically only get 2/3rds of the people to respond, and the other 1/3rd simply refuse to sign anything or even consider anything to do with the HOA (they don't vote either way). That makes it near impossible to get 67% vote, while getting 51% is more than three-times as easy to do for us.
- 90% of those who responded to a poll are in favor of sheds. I don't foresee anyone rising up to challenge these "terminations" once filed, and put into force.

Questions:
1. Does anyone see a problem with us calling this a "termination" instead of an "amendment"? We aren't looking for bulletproof; we simply want to get these terminations documented and recorded, so that we can move on safely with construction of new sheds.
2. Has anyone here ever dealt with voting to terminate clauses from their CCR's?

SheliaH
(Indiana)

Posts:3058


01/27/2020 9:03 AM  
I see this more like an amendment - you haven't gotten rid of the part that says no sheds, but are establishing a rule specifying things like size and type of materials. If you were really terminating this section, you'd drop it altogether and people could put up whatever they want.

You didn't say if you're working with your association attorney on this - if not, it would be helpful for him/her to have a look because one or two words can make a lot of differences (such as determining the difference between termination and amending).

While you're at it, you may want to look into amending the documents to reduce the homeowner approval percentage to 51% (I wouldn't go lower than that.) You'll still need the 67% to approve this, but once it's done, the association should find it easier and faster to update the documents so they'll complement current law. It can also allow for CCR changes that enable the association to operate more efficiently.

Contrary to what some may think, this WOULDN"t take away anyone's right to vote. 51% is still a majority and homeowners who feel strongly one way or another will get off their ass and accordingly. Not voting means you go along with whatever side winds.
BrianK13
(Indiana)

Posts:94


01/27/2020 9:25 AM  
Posted By SheliaH on 01/27/2020 9:03 AM
I see this more like an amendment - you haven't gotten rid of the part that says no sheds, but are establishing a rule specifying things like size and type of materials. If you were really terminating this section, you'd drop it altogether and people could put up whatever they want.

You didn't say if you're working with your association attorney on this - if not, it would be helpful for him/her to have a look because one or two words can make a lot of differences (such as determining the difference between termination and amending).

While you're at it, you may want to look into amending the documents to reduce the homeowner approval percentage to 51% (I wouldn't go lower than that.) You'll still need the 67% to approve this, but once it's done, the association should find it easier and faster to update the documents so they'll complement current law. It can also allow for CCR changes that enable the association to operate more efficiently.

Contrary to what some may think, this WOULDN"t take away anyone's right to vote. 51% is still a majority and homeowners who feel strongly one way or another will get off their ass and accordingly. Not voting means you go along with whatever side winds.



Keep in mind that we are not amending current shed specs to be more strict. We are simply "terminating the prohibition of some sheds"... this is a relaxing change, but just not as drastic as full termination of the whole clause. It would not be appropriate for a lesser-relaxation to require more votes than a full-termination, right?

We're not concerned about this being bulletproof. Just wanting to make sure it's a "reasonable argument" so that we can execute it and record it; that'll suffice for our lax HOA. We believe the argument in favor of viewing these modifications as "terminations" is very strong and logically appropriate. And we believe it is very inappropriate to make "lesser terminations" require more votes than "full terminations", don't you?

The confusion is only caused by thinking in simple terms. You can say "but you aren't just removing a word". You have to view our termination for what is it -- we're terminating the prohibition of certain compliant sheds, while keeping the prohibition on all non-complaint sheds. Previously, ALL SHEDS are prohibited. Now, only SOME SHEDS are prohibited.
AugustinD


Posts:2932


01/27/2020 9:52 AM  
Posted By BrianK13 on 01/27/2020 8:37 AM

Keep in mind that with 51% vote, we could allow ALL SHEDS. So it wouldn't make sense to require 67% vote to allow SOME SHEDS (making a smaller change).
Posted By BrianK13 on 01/27/2020 9:25 AM
It would not be appropriate for a lesser-relaxation to require more votes than a full-termination, right?
I guess you are trying to argue that the covenants on amending and terminating are logically inconsistent (at least in this instance) and a court would instead accept your reasoning. I am not seeing it. This is because allowing some sheds can be viewed as a bigger change than throwing out the original covenant prohibiting sheds in its entirety. I agree with Shelia: This is an amendment, pure and simple. Furthermore I would not support amending the provision on amending to require only a 50 plus % vote of all members to amend the covenants. This makes it too easy to amend and may produce chaos.
BrianK13
(Indiana)

Posts:94


01/27/2020 10:24 AM  
AugistinD, I'm not so concerned about what a judge might say, although a reasonable/smart judge would have to rule in our favor, due to the spirit of the change we're making. But it's 99% likely that this will never come before a judge. We're in a HOA now where many of our covenants are already ignored. We just want to make it official/recorded. We're a median-wage neighborhood, with home prices slightly below the median price for all homes sold in the area. Our HOA is very lax, and not likely to become more strict in the future.

The current result is "chaos" as the Board exerts their right of "non-enforcement", and so fewer and fewer of our covenants become enforced. Our entire CCR's document loses it's meaning. This is true chaos, and at same time dangerous, as we're susceptible to having a future zealous board taking the helm and trying to "undo the damage" and might tell folks to tear down their sheds, etc. Achieving a partial termination would bring order/safety, that we may not otherwise achieve.

So we plan to simply "terminate" the prohibition of certain sheds, while maintaining the prohibition of all other sheds. It's a partial termination, in truth.

67% approval for amendments that *add* restrictions (make things stricter) makes 100% sense. Changes that in effect only partially terminate a current covenant should rightfully be viewed (by all judges and people) as terminations, not amendments.

I believe the reason this isn't the convention is that people are confused by surface appearance, i.e. we are "adding words" which by default looks like an amendment. But in this case, it's just a termination; and because it's only "partial", it requires words to define it. Think of it only as the "Adding of words to define a termination." Because this isn't even a stretch... it's the truth of what is happening here.

==
QUESTION: If our CCR's were worded as:
"The following types of sheds are prohibited: Wooden/shingled/matching sheds, and all sheds that aren't wooden/shingled/matching".

And all we did was remove the first clause "Wooden/shingled/matching" words, so that it read:
"The following types of sheds are prohibited: all sheds that aren't wooden/shingled/matching".

Then would you be OK with calling this a termination? (since all we did was remove a few words)
PaulJ6
(New York)

Posts:749


01/27/2020 10:53 AM  
Please confirm that the HOA lawyer has drafted the relevant documents and signed off on this.
AugustinD


Posts:2932


01/27/2020 11:12 AM  
Posted By BrianK13 on 01/27/2020 10:24 AM
I'm not so concerned about what a judge might say, although a reasonable/smart judge would have to rule in our favor, due to the spirit of the change we're making.
You want to go from no sheds allowed to some sheds allowed. If I were judge, I would rule that this is an amendment and would require a 67% vote. Maybe take a poll here to help your decision-making.

Judges do not rule based on "spirit of the change."

Posted By BrianK13 on 01/27/2020 10:24 AM
But it's 99% likely that this will never come before a judge.
In complete seriousness, if the latter is so, go ahead and do whatever. Nationwide HOA Boards break the law all the time. Few try to litigate. No kidding: I am completely serious.

Posted By BrianK13 on 01/27/2020 10:24 AM
We're in a HOA now where many of our covenants are already ignored. We just want to make it official/recorded. We're a median-wage neighborhood, with home prices slightly below the median price for all homes sold in the area. Our HOA is very lax, and not likely to become more strict in the future. The current result is "chaos" as the Board exerts their right of "non-enforcement",
Nationwide many HOA Declarations say that the HOA has the right not to enforce xyz. Instead and according to the Declaration, a HOA member seeing a violation by another neighbor may file in court against the other neighbor. However nationwide and in general, the courts typically have found this part of Declarations to be contractually not allowed. In other words, HOAs are in fact required to enforce covenants and under certain conditions, may be sued for a failure to enforce. A HOA where I used to live tried what you are proposing and got busted in court for it. The HOA lost. The member wanting the HOA to enforce the covenants won. Cost a lot of money. (And by way of disclosure, I was on the wrong side of this. Years have gone by and I have read more. Now I understand the court's reasoning.)

Posted By BrianK13 on 01/27/2020 10:24 AM
and so fewer and fewer of our covenants become enforced. Our entire CCR's document loses it's meaning. This is true chaos, and at same time dangerous, as we're susceptible to having a future zealous board taking the helm and trying to "undo the damage" and might tell folks to tear down their sheds, etc. Achieving a partial termination would bring order/safety, that we may not otherwise achieve.
[for brevity, snip discussion of re-defining termination. It does not change my position.]
Posted By BrianK13 on 01/27/2020 10:24 AM
QUESTION: If our CCR's were worded as:
"The following types of sheds are prohibited: Wooden/shingled/matching sheds, and all sheds that aren't wooden/shingled/matching".

And all we did was remove the first clause "Wooden/shingled/matching" words, so that it read:
"The following types of sheds are prohibited: all sheds that aren't wooden/shingled/matching".

Then would you be OK with calling this a termination? (since all we did was remove a few words)
No I would not. It's a big deal to go from no sheds allowed to some sheds allowed. AFAIC 67% is the magic number. To be disgustingly pedantic, the removal of a single comma in some legal documents can change things drastically.

Your HOA should at least attempt a massive campaign to achieve the 67%

Else I agree with PaulJ6. Who knows -- maybe you can get a HOA attorney to agree with you.
BrianK13
(Indiana)

Posts:94


01/27/2020 11:51 AM  
AugustinD, I appreciate your comments, even though I'm arguing them. I'm trying to figure out our approach here. I think we're going to frame it as a termination (because that's really what this is), but aim to get 67% votes, so that it becomes a "don't matter" in the end. If we get 67%, we'll file it as an "amendment" to be safest.

Our aim is to find an attorney that will bless this, although, I also think that there are not Indiana Laws which *require* an attorney signature to officiate a termination.

Because Boards across the nation violate laws rampantly (as has ours), and we also find that the AG of Indiana takes almost ZERO actions against HOA's, we seem to be mostly safe from scrutiny here, unless it's brought from within, by members who are willing to devote time/money to fight against majority opinion. The vast majority of us want these amendments; so it would take a lowly person to fight against it, who also has time/money/talent to spare.

Our Plan A is to get 67% votes, but if we fall short, I think we're going to file/record this anyway, as a "termination" as "Plan B".

I posted here to hear counter-arguments.

You mentioned that "removing a comma can be a huge change" - I agree. But if it comes before a judge, and becomes 100% evident that what we accomplished with these words was "less of a termination than a full termination" and that we in no way "made things more strict" or "enabled a new restriction" -- we simply relieved the Sheds restriction. A smart judge would have to see this for what it truly is -- a "termination" in part.

If we "removed a comma" and the result was anything other than a "termination", then of course that would be an "amendment". It matters not the number of words added or subtracted, but it only matters what the net effect is of those words. In our case, the ONLY effect of our wording will be partial "termination", and so should require no more votes than a full termination (and even bigger change of the EXACT SAME NATURE).

It makes me mad that the court *would* choose to be so stupid as to view it any other way than a termination. My argument makes 100% logical sense. When you take the LSAT, the vast majority of what they are testing is your ability to conduct rational "logic". If it comes down to it, I would just hope that we get a smart judge who can comprehend the accuracy/appropriateness of our logic.
GeorgeS21
(Florida)

Posts:2314


01/27/2020 11:56 AM  
Amendment.

It would be a termination if you completed deleted all mention of sheds.
BrianK13
(Indiana)

Posts:94


01/27/2020 12:17 PM  
Posted By GeorgeS21 on 01/27/2020 11:56 AM
Amendment.

It would be a termination if you completed deleted all mention of sheds.



Based on what logic? What is your profession in life?

I think judges think at a deeper level of logic than the vast majority of us. Judges have to think like computer programmers, really, since they are like the CPU's that have to execute the code-of-law. The LSAT is 75% geared to filter out those who can't figure deeper levels of logic (i.e. looking past what is on the surface, and seeing the true logic that is at hand here).

Which is more important, "how many words you used to achieve a change" or "the actual net change that your words achieved"? I'd say that without doubt, the net change is by far the most important thing here, and the net effect of our words is ONLY a termination. Therefore a judge who is good with logic, will discern this and judge appropriately in our favor.

What rational-minded judge would say "You can obliterate ALL of a covenant with 51% vote, but to obliterate half of it, this requires 67%".
AugustinD


Posts:2932


01/27/2020 12:28 PM  
Posted By BrianK13 on 01/27/2020 11:51 AM
I also think that there are not Indiana Laws which *require* an attorney signature to officiate a termination.
There are no such laws anywhere in the nation. The suggestion was made by the experienced people here because they know the board's liability diminishes when it gets expert opinions. If you feel you are expert in law, proceed post-haste.

Posted By BrianK13 on 01/27/2020 11:51 AM
Because Boards across the nation violate laws rampantly (as has ours), and we also find that the AG of Indiana takes almost ZERO actions against HOA's,
The above is just your latest misconception. Nationwide it is not state attorney generals who enforce compliance with covenants. It is civil courts.

Posted By BrianK13 on 01/27/2020 11:51 AM
Our Plan A is to get 67% votes, but if we fall short, I think we're going to file/record this anyway, as a "termination" as "Plan B".
Now the Attorney General can get involved, as your HOA board may be perpetrating criminal fraud.

Posted By BrianK13 on 01/27/2020 11:51 AM
I posted here to hear counter-arguments.
Which you do not find compelling. I see.
BrianK13
(Indiana)

Posts:94


01/27/2020 12:31 PM  
AugustineD, wrote: "In other words, HOAs are in fact required to enforce covenants and under certain conditions, may be sued for a failure to enforce. A HOA where I used to live tried what you are proposing and got busted in court for it. The HOA lost. The member wanting the HOA to enforce the covenants won. Cost a lot of money. (And by way of disclosure, I was on the wrong side of this. Years have gone by and I have read more. Now I understand the court's reasoning.)"

I'd like to hear more details about this, and what state you were in. I'm not sure how you can sympathize with the lawsuit. The way I view it is simple - if you don't like that current Board is not enforcing covenants, the solution is to simply "get elected" along with your like-minded buddies, and then start enforcing the covenants as you see fit. But you can only do this, so long as you retain a semblance of majority support -- which is AS IT SHOULD BE. It's why in Indiana, when covenants are ignored, it's just fine, AS IT SHOULD BE. Because if the HOA really wanted these covenants, then they'd elect someone who would enforce those covenants. Thus the reason that the "right of NON-enforcement" adamantly stated in the covenants is 100% appropriate.

Why is it 100% appropriate? Think about it. A good portion of HOA's are simply apathetic, and reach a point where NO ONE wants to be on the Board. So if you open up the Board to liability and FORCING THE BOARD TO DO STUFF THAT NO ONE WANTS TO DO, then how will you get anyone to volunteer to be on the board? The Only logical conclusion is that the Declarations "right of non-enforcement" makes perfect sense, and should NEVER be challenged.

So as stated, I'm not at all understanding how you have arrived at the state of "Now I understand the court's reasoning". Please enlighten me; maybe I'm missing something big here. Maybe the details of your case will help clear things up.
BrianK13
(Indiana)

Posts:94


01/27/2020 12:42 PM  
Posted By AugustinD on 01/27/2020 12:28 PM
Posted By BrianK13 on 01/27/2020 11:51 AM
I also think that there are not Indiana Laws which *require* an attorney signature to officiate a termination.
There are no such laws anywhere in the nation. The suggestion was made by the experienced people here because they know the board's liability diminishes when it gets expert opinions. If you feel you are expert in law, proceed post-haste.

Posted By BrianK13 on 01/27/2020 11:51 AM
Because Boards across the nation violate laws rampantly (as has ours), and we also find that the AG of Indiana takes almost ZERO actions against HOA's,
The above is just your latest misconception. Nationwide it is not state attorney generals who enforce compliance with covenants. It is civil courts.

Posted By BrianK13 on 01/27/2020 11:51 AM
Our Plan A is to get 67% votes, but if we fall short, I think we're going to file/record this anyway, as a "termination" as "Plan B".
Now the Attorney General can get involved, as your HOA board may be perpetrating criminal fraud.

Posted By BrianK13 on 01/27/2020 11:51 AM
I posted here to hear counter-arguments.
Which you do not find compelling. I see.



For this to be settled in civil court would require someone to hire a lawyer with their own funds. There isn't that kind of money in our neighborhood, and surely not over a questionable/justified action of the Board.

So for our neighborhood, most likely, the only viable recourse is AG initiated action, because there isn't anyone with money here to spend on their own attorney.

Filing this as a termination would not be fraud, when in fact, we can logically PROVE that all we are accomplishing here is a form of "termination". It would only be fraud if someone could show that what we did here was anything other than a form of termination. Our defense is simple: "There once was a restriction on wooden/shingled/matching sheds; now there is not. That is a termination of a restriction."

If needed, we'll likely keep searching until we find an attorney who will sign off on this, for the reasons that you stated regarding indemnification. I'm optimistic that we'll find one, because our argument is sound/accurate.
PaulJ6
(New York)

Posts:749


01/27/2020 12:46 PM  
This is a terrible idea.

Coming up with a dodgy analysis of a legal document and then looking for a lawyer to approve? You'll be able to find someone, but such a person is shady.

And doing something you know is likely to be out of bounds, in expectation that nobody will do anything about it? See this article for what happens when HOAs do that: https://www.greenvilleonline.com/story/news/2019/04/02/sc-hoa-says-lawsuits-bankrupting-their-greenville-community/2919200002/

Take the time to do it right and get 67% approval. And in the process of doing that, get approval to change the CC&Rs and your other governing documents so that future amendments will be easier to get.
GeorgeS21
(Florida)

Posts:2314


01/27/2020 1:13 PM  
Hmmm. Nope, comes up the same in my head.

Amendment.

Not a termination.
AugustinD


Posts:2932


01/27/2020 1:21 PM  
Posted By BrianK13 on 01/27/2020 12:31 PM
The way I view it is simple - if you don't like that current Board is not enforcing covenants, the solution is to simply "get elected" along with your like-minded buddies, and then start enforcing the covenants as you see fit. But you can only do this, so long as you retain a semblance of majority support -- which is AS IT SHOULD BE.
If a majority of HOA members vote to disallow black people from living in the HOA, then therefore black people should be disallowed from living in the HOA? Readers: I request you let BrianK13 respond to this first before posting your own thoughts.
Posted By BrianK13 on 01/27/2020 12:31 PM
It's why in Indiana, when covenants are ignored, it's just fine
BrianK13, it seems like you are taking the anti-government line which many Indianans favor. I am fairly anti-government myself these days. But when you make assertions that are false, I think you lose credibility. You can dig into the case law and find that disregarding covenants is not categorically "fine." The overriding reason for this is that the courts for the greater part have held that covenants are a contract. In a number of instances, Indiana courts have held that land owners are bound by covenants. E.g.

https://cases.justia.com/indiana/court-of-appeals/2019-19a-sc-300.pdf?ts=1569337757 (Yes, a HOA member has to pay the HOA assessment)

https://law.justia.com/cases/indiana/court-of-appeals/1951/18-141-3.html

If a HOA has a clause in its governing documents saying the HOA is not required to enforce covenants, it is possible Indiana trial courts and even appeals courts would take a "plain reading" approach and say there is no duty to enforce. So you are right in part, that this is likely state dependent, and that I over-reached. California (which is not my state) for one has a different approach and explains well the reasoning of the trial court in my state: https://www.davis-stirling.com/HOME/Duty-to-Enforce
BrianK13
(Indiana)

Posts:94


01/27/2020 1:32 PM  
Posted By PaulJ6 on 01/27/2020 12:46 PM
This is a terrible idea.

Coming up with a dodgy analysis of a legal document and then looking for a lawyer to approve? You'll be able to find someone, but such a person is shady.

And doing something you know is likely to be out of bounds, in expectation that nobody will do anything about it? See this article for what happens when HOAs do that: https://www.greenvilleonline.com/story/news/2019/04/02/sc-hoa-says-lawsuits-bankrupting-their-greenville-community/2919200002/

Take the time to do it right and get 67% approval. And in the process of doing that, get approval to change the CC&Rs and your other governing documents so that future amendments will be easier to get.



The Woodington HOA described here sounds about like our HOA for the last 10 years. I have on record my requests to them for minutes, records, etc, repeatedly, without any response. Sure we could have sued them, but who does that? And here in Indiana, you can't sue outright, now you have to follow a "Grievance Claim" process first.

And so what did we do? Did we sue? No, instead we took over the HOA ourselves by getting elected. As it should be. That's how HOA's are designed; majority rule. The majority shall elect leaders that are aligned with the majority (in general, unless unpopular boards hold onto the power via various abusive means).

It would take a lowly person to file a Grievance Claim against a board action which is logically justified 100%, and also garners the support of the vast majority (of those who care enough to vote).

Keep in mind that to get 51% of the vote, you really need about 75% of the vote among those who care enough to vote. That's how it is here.

I don't think it's right to live your life according to "fear of rare things that happened to someone once". Statistically, what happened in Woodington is a very rare spectacle. And the things they were sued over have nothing to do with us. For decades, our HOA has run things in a way that could be deserving of lawsuits -- yet there were none. Where an unpopular board did things without caring about majority support; but since our HOA is lazy in general, although people didn't like them, no one wanted to run for the Board. They were too apathetic.

In my best judgement, the risks here are very low. And recent HOA Act of 2015, actually was written to prevent things from happening like this (abundance of petty costly lawsuits). And the AG here, has only taken one action against a HOA in the last 3 years here in Indiana - and there are 4800 HOA's here.

So we may be faced with the lesser of two evils, if Plan A doesn't work out (i.e. we can only get 51% vote):
1. We either file this as a "termination" so that people can build their sheds.
or
2. We just allow people to build their sheds anyways, despite the restriction, since 90% of those polled are in support of sheds!
or
3. We enforce the "no sheds" covenant (with lawsuits!) despite there only being 10% of us still wanting to enforce no sheds.


Which is worse?
So far, we're stuck between #2 and #3. We have a number of small resin sheds now, because at least if there was a lawsuit, the person could just take it down easily. And we aren't stopping them. No is or has.

So we either continue to let this violation increase, or we start filing lawsuits!...

So to me, I think #1 is the lesser of the evils, and will function correctly. I'm 99% sure it won't be challenged in the courts, and even if it was, I think it would stand, since in truth, this really is just a termination that we're dealing with. And if it is challenged, then we'll just have to re-run the amendment process, and push harder to get 67%.... problem solved.

Or it's reversed, but since 90% of us want sheds, we'll just continue to elect Board members who won't enforce this restriction. Eventually, maybe we'll get the 67% vote.

We're living in an imperfect world, and when it comes to legal compliance, statistically, HOA's are probably more guilty than most entities.

But in this case, if we filed this as a termination - we're still guilty of nothing. It's an appropriate way to frame these changes -- terminations. Simple as that. More HOA's should follow suit, because it's logically appropriate to view it this way.





PaulJ6
(New York)

Posts:749


01/27/2020 1:33 PM  
Then go for it.
BrianK13
(Indiana)

Posts:94


01/27/2020 1:47 PM  
AugistinD - To answer your baited question "what if majority voted to disallow people based on race or religion?"
This is not a pertinent question. This question would be like "adding a new restriction" not "failing to enforce an existing restriction". The "Right of Non-Enforcement" doesn't permit you to "enforce new things", but rather to simply NOT enforce a covenant. So the fact that you think this question is relevant to my argument either indicates that you don't understand my argument, or you aren't great at logic. Logically, your question is not pertinent to this discussion, and does nothing to make your argument.

I have never suggested that the Board can enforce MORE than what is written; only that they have the right to enforce LESS.

I also realize there are restrictions here too. We do have some responsibilities as a neighborhood that must be lived up to. And that covenants that are enforced, have to be done so uniformly, etc, etc.

But when it comes to "sheds" - the government just doesn't care at all about this. The changes we have in mind, are 100% off the gov't radar. They are trivial matters of "taste/aesthetics".

We too are "bound by covenants", but part of those covenants adamantly declare that the board has the "right of non-enforcement" which means that if you can't amend the documents, you can at least elect board members who won't enforce certain unpopular restrictions -- and everyone (including the gov't) will be 100% fine with it. The recourse for those who want it otherwise is to "get elected with like-minded buddies". Nothing else really makes sense. And California is a poster-child for "how things should NOT be done", especially with regard to HOA's, IMO.


BrianK13
(Indiana)

Posts:94


01/27/2020 1:54 PM  
Posted By PaulJ6 on 01/27/2020 1:33 PM
Then go for it.



Our Plan A remains to pass this as an amendment with 67% vote. But if we only get 66% of the vote, and can't seem to get that final 1% no matter how hard we try -- we'll probably resort to Plan B, pending that we can find an attorney who will bless this for us.

Honestly, I would be surprised if there aren't hundreds of other HOA's out that who've done something similar, successfully. Although, my life experience tells me that I tend to be a pioneer on thought, I also tend to find that I am not alone -- hundreds of others like me may have already done this. It's logically, the right idea.

Maybe we'll help to establish "precedent" and a new trend to make it appropriately easier for other HOA's to follow suit, and seek "partial terminations" rather than "full terminations", exactly as we may end up doing.

If you aren't against "full termination with 51% vote", then morally you really shouldn't object to an approach that enables "partial terminations with 51% vote". It just makes sense, right?
PaulJ6
(New York)

Posts:749


01/27/2020 2:06 PM  
I'm not going to approve or support any of this. If you're going to do it, do it, but I'm not weighing in any more.
AugustinD


Posts:2932


01/27/2020 2:09 PM  
BrianK13, repeatedly and with emotional emphasis you have asserted, "That's how HOA's are designed; majority rule." Do you or do you not believe that a simple majority (or even 67+%) should be permitted to amend the covenants any way it wants, including prohibiting people who are black from living in the HOA?

You are certainly allowed to amend your statement to say something like, "I think a majority should be allowed to amend the covenants any way it wants, as long as state law and federal law are followed."

Ultimately what I am getting at is that in the United States, certain protections are built in to preclude what is known as 'the tyranny of the majority.' As much as you may think it's' clever and mathematical to believe that majority rule is logical, "majority rule" is in fact often illogical.
AugustinD


Posts:2932


01/27/2020 2:09 PM  
Posted By PaulJ6 on 01/27/2020 2:06 PM
I'm not going to approve or support any of this. If you're going to do it, do it, but I'm not weighing in any more.
PaulJ6 is a good soul.
BrianK13
(Indiana)

Posts:94


01/27/2020 3:04 PM  
Posted By AugustinD on 01/27/2020 2:09 PM
BrianK13, repeatedly and with emotional emphasis you have asserted, "That's how HOA's are designed; majority rule." Do you or do you not believe that a simple majority (or even 67+%) should be permitted to amend the covenants any way it wants, including prohibiting people who are black from living in the HOA?

You are certainly allowed to amend your statement to say something like, "I think a majority should be allowed to amend the covenants any way it wants, as long as state law and federal law are followed."

Ultimately what I am getting at is that in the United States, certain protections are built in to preclude what is known as 'the tyranny of the majority.' As much as you may think it's' clever and mathematical to believe that majority rule is logical, "majority rule" is in fact often illogical.



No need to school me on this concept. You are preaching to the choir. My omission of this type of verbiage doesn't mean I think "majority rule for all things is good". The HOA is designed as a democratic Republic, and as such, within reason the Board should be aligned to majority opinion, especially when it comes to restrictions (things that are mostly a matter of opinion/taste -- like "sheds vs. no sheds" or "mailbox uniformity", location of trash cans, etc).

I realize that pure democracies are mob rule, and often stupid, often acting more stupid than the average person (which in America, is a low bar).

But when it comes to things like "sheds vs no sheds" which is what we're discussing here, then yes, the board should align itself to majority opinion. I believe that strongly. Thus the reason for the "right of non-enforcement" which permits a HOA to have a board that behaves in this fashion. Without the "right of non-enforcement", HOA's can find themselves in a terrible place. (i.e. forcing liability on Board members to enforce unpopular restrictions, makes it so no one will volunteer, etc, etc. Or puts a HOA in a position where "scant minority rules" which is worse than "majority rule" in many cases).
BrianK13
(Indiana)

Posts:94


01/27/2020 3:14 PM  
Posted By PaulJ6 on 01/27/2020 2:06 PM
I'm not going to approve or support any of this. If you're going to do it, do it, but I'm not weighing in any more.



I have posted here with several objectives:
1. Test out the proposal, and learn how people react to it. (note to self - by default, not so good, it seems)
2. See if there are any listeners out there who have seen this approach work.
3. At least determine if folks are at least "empathetic" (e.g. "I see your point." or "Things should probably work that way, even if they currently don't.")

Paving paths less-traveled-by is a difficult thing.

So it's important to me to know if this less-traveled (or never-traveled?) path is a conceptually "right idea" (morally speaking).

Just because *current* thinking might say "no, that's an amendment" doesn't mean *future* thought will follow-suit. This is how change happens.

The question is, is there truly any good moral/logical reason that a "partial termination" should treated strictly as an amendment, vs. treating is as a termination?

Just think about the implications of current thought. Current thought concludes that it should be easier to terminate the WHOLE restriction, vs. just terminating PART of it, which is *less* of a change. Why make it harder to do something that is "less of a change"? A partial termination is still a termination. Why not treat them the same?

The courts should treat them the same, if they don't already. This is appropriate logic and makes the most sense.

Anyhow -- we'll hopefully achieve Plan A (67%), but if we don't, I'm not afraid to pave a new path -- a path the I strongly believe others should be following. It's an ethical smart path, IMO.

Just because it's out-of-the-norm, don't mistake that for "unethical", or "fraudulent", etc. This is one way innovation occurs...
GeorgeS21
(Florida)

Posts:2314


01/27/2020 3:20 PM  
Ah. Reminds me of so many corporate and engineering meetings where the group was trying to do something that was not allowed.

Brian, lots of interesting angles offered.

But, still, in the end - it is a modification, not a termination.

I am not an attorney - but, I can read and think somewhat logically.

Good luck.
AugustinD


Posts:2932


01/27/2020 3:21 PM  
Posted By BrianK13 on 01/27/2020 3:04 PM
I realize that pure democracies are mob rule, and often stupid, often acting more stupid than the average person (which in America, is a low bar).

But when it comes to things like "sheds vs no sheds" which is what we're discussing here, then yes, the board should align itself to majority opinion. I believe that strongly.
Well then lobby for amending the governing documents to allowing amendments via a 50+% vote of the membership. Else you are not following the law. Clearly you can live with the latter in this instance of sheds vs. no sheds.

Posted By BrianK13 on 01/27/2020 3:04 PM
Thus the reason for the "right of non-enforcement" which permits a HOA to have a board that behaves in this fashion. Without the "right of non-enforcement", HOA's can find themselves in a terrible place. (i.e. forcing liability on Board members to enforce unpopular restrictions, makes it so no one will volunteer, etc, etc. Or puts a HOA in a position where "scant minority rules" which is worse than "majority rule" in many cases).


The reason I disagree is because everyone who buys into a HOA goes in with eyes wide open about what the contract (covenants) are.

I have found the solution to enforcing unpopular restrictions is to wait until someone complains and then have the person document massively. This is a general requirement at the HOAs and condos I have seen.

Thanks for explaining you get that 'majority rule' as a logical matter is not always appropriate.
BrianK13
(Indiana)

Posts:94


01/27/2020 4:03 PM  
Posted By GeorgeS21 on 01/27/2020 3:20 PM

But, still, in the end - it is a modification, not a termination.



By who's logic is it not a "termination"? You are speaking in absolute terms here, as though there is only one valid view of things.

The logic I'm following is this: "Wooden/Shingled/matching sheds used to be prohibited, but this prohibition was terminated."

That's the net effect of the change we are aiming to make.

You could view EVERY termination as a modification. All Terminations are just a "type of change", and "all changes can be considered amendments". Therefore All Terminations are Amendments. Therefore there is no such thing as a Termination. That's the fallacy in your absolute thinking here, IMO.

Otherwise, you have to admit that we're going to consider "some changes to be terminations, not amendments". Which types of changes might those be? For us, we believe that a change that causes ONLY a partial termination to occur, is in fact also a termination.

People are conflating "adding words" with meaning "well then that's an amendment because you ADDED words". But the more important question to ask is "what was the net effect of your change?"

So when you speak in absolute terms, it's as though you have a magic legal dictionary which explicitly states "what constitutes an amendment vs. a termination". Does such a legal dictionary exist? And if it did, does that mean it needs to be forever unchanging, as though it were dispensed down from God?

And if not -- then ask yourself, which interpretation of "termination" makes the most sense here? (i.e. leads us to the most logical/appropriate decisions -- such as, should a partial termination really require more approval than a full termination?)

Whether or not something needs more or less approval should not be a function of the "complexity of the wording change", but rather "the net impact of the change" (did we add a new restriction, or are we simply relaxing an existing restriction?) Adding more restrictions -- requires more to approve it; while relaxing/terminating restrictions, obvious demands less approval. That's the intent here of making "terminations" easier to approve.

I keep repeating myself, but consider this "debate practice", as I'll surely be debating this again and again, as it comes up. That's how it goes with "unconventional ideas".


BrianK13
(Indiana)

Posts:94


01/27/2020 4:08 PM  
Likewise AugustineD, you wrote: "Else you are not following the law."

Here again, by who's definition of "termination"? Where is this magic Bible that tells us explicitly what defines which changes are to be classified as terminations?

Many simply are "counting words", but are ignoring the net impact of the change.

I argue strongly that the "net impact" is by far the most important thing to consider here. If the net impact is a "partial termination", then it's a termination.

The counter-argument is flimsy and flawed, IMO.

And the final litmus test, is that my argument leads to a more sane/logic/appropriate conclusion -- which is that partial terminations aren't any harder to pass than a full termination. Which is "as it should be", no?
AugustinD


Posts:2932


01/27/2020 4:17 PM  
Posted By BrianK13 on 01/27/2020 3:14 PM
Paving paths less-traveled-by is a difficult thing.
Especially when the paver thinks he walks on water.
Posted By BrianK13 on 01/27/2020 3:14 PM
Just think about the implications of current thought. Current thought concludes that it should be easier to terminate the WHOLE restriction, vs. just terminating PART of it, which is *less* of a change. Why make it harder to do something that is "less of a change"?
Why make it easier to add words that can confound people and result in more work for the HOA? Have you considered that disputes are far more likely when covenants name specific types of sheds as opposed to flat-out prohibiting sheds? More work for the HOA translating to a higher membership vote required seems as logical and reasonable.
AugustinD


Posts:2932


01/27/2020 4:30 PM  
Posted By BrianK13 on 01/27/2020 4:08 PM
Here again, by who's definition of "termination"?
The courts parse the meaning of words all the time. They even draw on authorities on grammar and the like. Your arguments might persuade a judge that the covenant for terminating vs. the covenant for amending is logically inconsistent. Or if you prefer, that "terminating" is a loaded word with many meanings. (What word isn't?) But if I were judge, then based on my reading of case law where covenants are thrown out by courts, I would be looking for "unfair and unreasonable." Are these covenants, taken together or taken by themselves, unfair and unreasonable? Right now I am not persuaded they are in all instances. To throw them out requires them to be uniformly unfair and unreasonable. As judge, I would fall back on the reality that these covenants are contractual terms to which all agreed prior to buying. If a member filed suit against your HOA for implementing what you want (re the sheds) via a simple majority vote, I would rule for the member, because 'a deal's a deal.'
GeorgeS21
(Florida)

Posts:2314


01/27/2020 5:20 PM  
Brian,

Let us know how it goes?
PaulJ6
(New York)

Posts:749


01/27/2020 5:27 PM  
AugustinD gives superb advice--consistently well-reasoned. I wouldn't disregard it.

The times when AugustinD and I have thought differently about things, it's just a friendly discussion- I respect his posts very much.
BrianK13
(Indiana)

Posts:94


01/27/2020 5:28 PM  
Posted By AugustinD on 01/27/2020 4:30 PM
Posted By BrianK13 on 01/27/2020 4:08 PM
Here again, by who's definition of "termination"?
The courts parse the meaning of words all the time. They even draw on authorities on grammar and the like. Your arguments might persuade a judge that the covenant for terminating vs. the covenant for amending is logically inconsistent. Or if you prefer, that "terminating" is a loaded word with many meanings. (What word isn't?) But if I were judge, then based on my reading of case law where covenants are thrown out by courts, I would be looking for "unfair and unreasonable." Are these covenants, taken together or taken by themselves, unfair and unreasonable? Right now I am not persuaded they are in all instances. To throw them out requires them to be uniformly unfair and unreasonable. As judge, I would fall back on the reality that these covenants are contractual terms to which all agreed prior to buying. If a member filed suit against your HOA for implementing what you want (re the sheds) via a simple majority vote, I would rule for the member, because 'a deal's a deal.'


Your theory is flawed. That judge would more rightly realize "a deal's a deal", and per the covenants, "terminations" only require a simple majority vote. Period. You can't then argue "but, but... they didn't terminate the WHOLE restriction!"... because if you are complaining that "wooden/shingled sheds are allowed", then surely you would be even more upset by a HOA that allowed ALL TYPES OF SHEDS. So consider yourself lucky that the board only relaxed the restriction rather than fully terminating it.

Furthermore, when 51% sign a termination, anyone with any knowledge of HOA's will realize that 51% vote in this context equates to more like 75% approval, not just 51%, due to all of the no-votes. In most cases, it requires super-majority support to obtain 51% of all home owner signatures. (i.e. 75% of those who care to vote, may amount to 51%)

And so here again, the judge should know that the termination itself most likely has super-majority support in truth, that the covenants do not require the board to enforce this restriction even if we undo this termination. And so even if the judge overturns the "partial termination", the plaintiff still won't get what they want.

A smart judge would tell that plaintiff, "sorry dude, you saw the covenants and should have realized that in order for these restrictions to be enforced, you gotta have a board willing to enforce them, which usually doesn't happen unless the restrictions have majority support. Also, didn't you see that these restrictions can be terminated by simple majority vote? Why are you complaining? You should have moved into a HOA with like-minded people. You messed up. Sorry." But maybe the judge we get won't be "smart".

I'm not sure how you came to the conclusion that the judge would think otherwise, unless he lacks strong logic skills.

In short, you've got a Plaintiff complaining about a termination which received the support required for a termination.

If on the other hand, we made an actual amendment that made things more restrictive without the 67% vote, then the plaintiff would have a case.
GeorgeS21
(Florida)

Posts:2314


01/27/2020 5:49 PM  
Brian,

Let us know how it goes?
BrianK13
(Indiana)

Posts:94


01/27/2020 5:50 PM  
Posted By PaulJ6 on 01/27/2020 5:27 PM
AugustinD gives superb advice--consistently well-reasoned. I wouldn't disregard it.

The times when AugustinD and I have thought differently about things, it's just a friendly discussion- I respect his posts very much.

For all my undertones of disrespect here, I concur -- AugustinD is an experienced informed well-written source of advice here, and I am thankful for him.

I realize that I can argue this until I'm blue, and it doesn't really matter how much "logic" is on my side, as it all comes down to the judge and how they choose to view it.

Worst case is if by some remote chance a HOA member decides to invest their own money to try and undo the will of the vast majority, and we lose the case, we'll just concede and undo the terminations. Soon after we'll relaunch the campaign for actual amendments (with a vengeance), and in the meantime, we'll all just make sure the Board is filled with individuals who are aligned to the majority, and won't enforce the restrictions, as is their right. The plaintiff still won't get what they wanted, and on top of it, they'll likely become hated for costing the HOA money on behalf of the agenda of the unhappy minority.

The only way for these zealots to "get what they want" (e.g. no sheds) is to move. Or they can just come to terms with the fact that sheds are here to stay, and maybe be consoled by knowing that the majority of people will be getting what they want. But some don't really care about the greater good, IMO.

If you want "no sheds" - it basically requires two things: (a) CCR that says "no sheds", AND (b) a neighborhood that also AGREES with this CCR. Although, in some cases an unpopular board can retain control for longer, and maintain the "no sheds" despite the majority opposition. But their days are usually numbered; this won't last forever.

===

I have a history of trying and accomplishing things that others wouldn't even dare to try. My batting average isn't that bad.

I'll keep y'all updated later this year, how things went.

I really appreciate the feedback, even if it seems that I'm just despising it. Thank you for your feedback and energy, and for the friendly combat.
BrianK13
(Indiana)

Posts:94


01/27/2020 6:41 PM  
Posted By AugustinD on 01/27/2020 4:17 PM

Why make it easier to add words that can confound people and result in more work for the HOA? Have you considered that disputes are far more likely when covenants name specific types of sheds as opposed to flat-out prohibiting sheds? More work for the HOA translating to a higher membership vote required seems as logical and reasonable.

At first I thought this might be your best counter-argument. At least it differentiates more meaningfully a simple termination from a partial termination. The partial termination can imply "more work for the board" since now the ARC has to approve of sheds. But then I thought more about this... the ByLaws have the power to incur a lot more work on the Board too, but this document, for us can be modified by 6% approval! (majority of a 10% quorum) So if it's a concern about Board work-load, then why are the ByLaws so easy to change? Shouldn't anything that can incur more workload for the board be approved by 67%? But it's not.

Clearly, the rationale behind the 51% vs 67% has little-to-nothing to do with concerns over board work load. Besides, the covenants never force a board to do this workload, as the board is still able to fully ignore this restriction if they want. So this argument is still weak at best.

When it comes down to it, the only real reason a judge (or people) seem to view my "partial terminations" as "amendments" is due to convention, not logic. They see the "many words" and so on the surface "it looks like an amendment", and so naturally they just label it an "amendment", but in truth it is only a "termination" (logically). The logical truth here is more important than the "surface appearance", or at least it should be. Hopefully a judge, who is supposed to be very strong on "logic" would put more weight onto the "Logical truth".

I'll probably keep arguing here even without contenders, because I'm obsessive like that.
GenoS
(Florida)

Posts:3675


01/27/2020 8:09 PM  
Posted By PaulJ6 on 01/27/2020 12:46 PM
This is a terrible idea.

Coming up with a dodgy analysis of a legal document and then looking for a lawyer to approve? You'll be able to find someone, but such a person is shady.

I agree that the analysis is dodgy and attorney-shopping for a rubber-stamp legal opinion is shady. If it's such a great idea then find 67% of the homeowners to approve an amendment. Otherwise, tough luck.
BrianK13
(Indiana)

Posts:94


01/27/2020 8:23 PM  
Posted By GenoS on 01/27/2020 8:09 PM
Posted By PaulJ6 on 01/27/2020 12:46 PM
This is a terrible idea.

Coming up with a dodgy analysis of a legal document and then looking for a lawyer to approve? You'll be able to find someone, but such a person is shady.

I agree that the analysis is dodgy and attorney-shopping for a rubber-stamp legal opinion is shady. If it's such a great idea then find 67% of the homeowners to approve an amendment. Otherwise, tough luck.

Please consider the other realistic alternatives here. Say we can only obtain 66% signatures, and no matter how hard we try, can't get the last 1%. And so an amendment to allow sheds fail.

Then look at the full scenario. Out of 100 homes, only 70 would vote. The other 30 are unreachable, and consider our communications spam, or simply call themselves "switzerland" and won't vote. So we obtain 66 affirmative votes out of the 70 that voted. But the termination fails because we refuse to call it a termination. Of those that voted, only 6% want to prohibit all sheds, and 94% want sheds.

What's the end result? We say "screw it, build your sheds; we're not enforcing this covenant", because Section 12.1 declares our right to "non-enforcement". Since sheds are so widely supported by those who vote, we can safely assume that our sheds won't be at risk in the future either.

The end result? Lawlessness; more restrictions ignored.

And we don't bother to attempt another amendment process, because heck, we're building sheds already, so what's the point? And besides, the last effort was arduous and disappointing. No one wants to go through that again.

Is that situation better or worse than the one where our 66% vote results in "approved partial termination" and thus it's now official that you can build sheds that match this spec -- and we can enforce the restriction against sheds that don't match the spec. Now we're not ignoring covenants! Much better.

All this is achieved by following fully rational (yet currently unconventional) logic. And it just makes sense. If you achieve 51% vote, then in truth, you have closer to 75% support from those who vote. And thus, you can assume that if you didn't approve this termination, the restriction won't get enforced anyways!... (only 25% want it)... And so it only makes sense that "partial terminations" be treated the same as "full terminations".

If we instead follow conventional logic, the outcome is far worse -- lawlessness in many cases, or just 75% of the people not getting what they want due, and having 25% opinion preside. Less happiness to go around. Congratulations to conventional logic.
BrianK13
(Indiana)

Posts:94


01/27/2020 8:27 PM  
I get the feeling that the majority of people who hang out on these forums are on the side of "all covenants should be enforced, regardless of majority opinion", and argue "when you bought the house you agreed to abide by these covenants, and so shall it be, irregardless of majority opinion". And therefore, the majority of folks here err on the side of wanting to make covenants "harder to changed", etc.
GenoS
(Florida)

Posts:3675


01/27/2020 8:32 PM  
Posted By BrianK13 on 01/27/2020 8:23 PM
Please consider the other realistic alternatives here. Say we can only obtain 66% signatures, and no matter how hard we try, can't get the last 1%. And so an amendment to allow sheds fail.

The end. The only other alternative is to amend the CC&Rs to reduce the percentage required for an amendment. Of course, that amendment must attain the original percentage of votes in order to approve the reduction. We did that here some years back.

You've got to consider that maybe you can't get the 67% because at least a third of the owners really don't want to see any sheds in the community.
GeorgeS21
(Florida)

Posts:2314


01/27/2020 8:48 PM  
Ha, funny.

Nope, not rational or logical.

Gonna lose, but let us know, ok?
BrianK13
(Indiana)

Posts:94


01/27/2020 10:51 PM  
Posted By GenoS on 01/27/2020 8:32 PM
Posted By BrianK13 on 01/27/2020 8:23 PM
Please consider the other realistic alternatives here. Say we can only obtain 66% signatures, and no matter how hard we try, can't get the last 1%. And so an amendment to allow sheds fail.

The end. The only other alternative is to amend the CC&Rs to reduce the percentage required for an amendment. Of course, that amendment must attain the original percentage of votes in order to approve the reduction. We did that here some years back.

You've got to consider that maybe you can't get the 67% because at least a third of the owners really don't want to see any sheds in the community.

That's just not the case here. I know this for a fact, and can feed you details, but I'm done ranting here.

I think I've heard what I needed to hear here. I'll post back after we achieve a victory or loss.
BrianK13
(Indiana)

Posts:94


01/27/2020 10:55 PM  
Posted By GeorgeS21 on 01/27/2020 8:48 PM
Ha, funny.

Nope, not rational or logical.

Gonna lose, but let us know, ok?

I'm willing to bet that logical thinking is not your strong suit. I'm also willing to bet that you are of the mindset that CCR's are like the Bible - all of them should be enforced, without regard for popular opinion. Black-and-white print trumps popular opinion. That law is the law, right? That's how you view it, right? (and probably the majority of people on this site)

We belong to opposing factions, I'm guessing. You are hoping for my failure, because my views probably represent "everything that is wrong" to you.

Am I right?
BrianK13
(Indiana)

Posts:94


01/27/2020 11:15 PM  
Posted By GeorgeS21 on 01/27/2020 8:48 PM
Ha, funny.

Nope, not rational or logical.

Gonna lose, but let us know, ok?

I believe Florida is notorious for having more gov't rules than most states for HOA's right? You are from Florida, so maybe your views are just skewed by your locale, when making a judgement for how things will go here in Indiana.

Here in Indiana, my experience is that HOA boards "do what they want to do" and so long as it isn't too terrible, no one will ever consider filing a lawsuit to stop them. For example, our board, for many years was "non-transparent", omitted key things from the end-of-year spending reports, and would not provide hardly any required information to HOA members at their request. For a year, my requests for info went unanswered. Rather than sue, I decided that we'd just usurp the board, and take over. And that's what we did. That's how it's done here in Indiana; don't like the board? Vote them out. And we did so with a 5:1 landslide victory. I have the popular support from our neighbors already. 54% of our neighbors actually gave me their proxy to oust the previous board members. They would have done it sooner, but no one really wanted to be on the board! I recruited 2 others, and we swept the board clean.

I don't think the character of our HOA will change by much. As always, I would expect that a board with majority support (that's us) would be able to conduct things in a fashion that we could easily/logically justify to a judge, and to the rest of the HOA. There is no wrongdoing in framing terminations as terminations. Even if a judge were to overturn these terminations at a later date, there will be no convictions here of wrongdoing, especially if we find a lawyer who will sign off on it. And the likelihood of someone filing a lawsuit to challenge it is near-zero.

I'd be very surprised if your prediction "gonna lose" is correct.

(OK, so I couldn't hold off.)
TimB4
(Virginia)

Posts:16700


01/27/2020 11:51 PM  
My opinion,

You can do what you desire, but not the way you are thinking.

Terminate No sheds (51%) - this action will allow all sheds.

Amend to prohibit some sheds (67%) - this action will provide you with what you want.


Doing it your way, only 51% for the termination and amendment, could result in a legal challenge where the termination is upheld but the amendment to allow some/prohibit others, would not be upheld. End result, all sheds allowed.


My advice, don't take the chance.
Do the work, gather support and amend the document properly with the 67%.
BrianK13
(Indiana)

Posts:94


01/28/2020 12:11 AM  
Posted By TimB4 on 01/27/2020 11:51 PM
My opinion,

You can do what you desire, but not the way you are thinking.

Terminate No sheds (51%) - this action will allow all sheds.

Amend to prohibit some sheds (67%) - this action will provide you with what you want.


Doing it your way, only 51% for the termination and amendment, could result in a legal challenge where the termination is upheld but the amendment to allow some/prohibit others, would not be upheld. End result, all sheds allowed.


My advice, don't take the chance.
Do the work, gather support and amend the document properly with the 67%.

If what you say happened, that too would be no big deal. First off, if you are right, no one would challenge it, because if they did challenge it would be to RESTORE the full covenant, not to terminate it... and so a challenge would be counter-productive. So there would be no risk of challenge.

Moving ahead still, if you are right, full termination of this covenant-- here again, this doesn't really allow ALL SHEDS. Why? Because of the ARC -- all new construction is subjected to ARC approval, and they can simply document the specs for which sheds are acceptable, and which ones are not. Although ARC specs are fickle and can change year-to-year without ANY vote -- it's totally up to the ARC. Silly how that works, isn't it?

The whole concept of ARC in our HOA is a bit silly. We give full decision-making power to two random like-minded ARC members, who get to say yes or no to what you do with your house. These two ARC members are often just "elected by default" (since nobody wants to be on the board, typically). Why so much power given to just two people? It's dangerous, and not really appropriate for many cases.

Anyhow -- just sayin', I don't think I agree with your logic.

Nonetheless, can you provide specifics where a judge made something like this happen? ("termination" said "allow wooden/shingled sheds" and the judge says, "well that means we're going to allow ALL sheds") I just don't see how a rationale judge could arrive at that conclusion -- what is the logic? Wouldn't the judge instead say "no, I think that constitutes an amendment, and so I simply reject it, and restore the covenants to original state."

Do you have any examples of real cases that back up your logic? It sounds unreal to me.
BrianK13
(Indiana)

Posts:94


01/28/2020 12:16 AM  
Why does everyone here assume that a "termination" can't be partial? Where is this written in stone?

It seems to me that this is based solely upon "convention", rather than logic. Perhaps "convention" just wins-out in court (it does hold a lot of weight, unfortunately). But courts do adapt over time to new thinking; court opinion isn't a non-moving target. In this case, life would be better if courts instead considered the fact that "Partial terminations" should be treated the same as "Full terminations". It's just flat-out appropriate, and silly to think otherwise.

Since it's not set-in-stone, we're currently not planning to stick with the inappropriate common conventional thinking.

But maybe, we'll be able to reach 67% approval, and won't have to take this risk.
TimB4
(Virginia)

Posts:16700


01/28/2020 12:26 AM  
The defense of laches applies to failure to enforce.

Termination means to remove. Hence, the 51% can only be used to terminate a covenant (per your posting).

Amending means to change.

Your situation is the only one I have heard of. All other covenants I have read only have requirements for amending.
Therefore, I doubt I would find court cases. However, standard contract law should apply. These are the terms of the contract. The Board exceeded their authority (ultra vires) by amending with only 51%. If challenged, I gave you a potential outcome. Until challenged, and all appeals exhausted or all money spent, no one really knows what a ruling would be.


You asked for opinions.
I provided one.
If you were shopping for answers (looking for a specific answer to support your theory), I didn't agree with your thinking.
Take it, leave it, doesn't matter either way.
GeorgeS21
(Florida)

Posts:2314


01/28/2020 6:26 AM  
The logic force is not strong in this one.
BrianK13
(Indiana)

Posts:94


01/28/2020 7:52 AM  
Posted By TimB4 on 01/28/2020 12:26 AM
Termination means to remove. Hence, the 51% can only be used to terminate a covenant (per your posting).

Amending means to change.

I do thank you for your opinion, but part of establishing a meaningful opinion often comes with a some back-and-forth dialog.

Note, that "removal is also a change", therefore all terminations are also Amendments. So why treat terminations differently? Yet they are, for good reason.

Also to note:
Definition of "Termination": "to bring to an end"

It does not mean "to remove", although "removal of words" in this case can often equate to termination. It's not the only form of termination.


In short, "Terminating a restriction" doesn't necessarily equate to "only removing words from a document"; you may also have to "add words" to achieve a termination (as in our case).

If "adding words" ONLY results in "removing a restriction", then no matter how it looks on the surface, that change fully qualifies as a "termination".

The key here is to help people to stuff judging a book based on it's cover.

Our argument is strong and sound, although unconventional for the current time.

I don't believe our change will ever see a court room, because it's well-defended, and due to the nature of our HOA - we're lower-end, and apathy abounds.

So our main objective here is simply to effective frame our changes as terminations, and since it's apparent that human tendency is overwhelming to "judge based on surface appearance", we'll probably need to go out of our way on the document filed, to preface it with a documented logic/legal argument as to why our changes all qualify as "terminations" (as they are ONLY "bringing certain specific restrictions to an end").
BrianK13
(Indiana)

Posts:94


01/28/2020 7:54 AM  
(wow, should have proofed that previous post -- I wish these forums allowed you to edit...) Sorry for the half-dozen typos therein.
BrianK13
(Indiana)

Posts:94


01/28/2020 8:05 AM  
Posted By GeorgeS21 on 01/28/2020 6:26 AM
The logic force is not strong in this one.

Trolling? If you really think my logic skills are weak, it only emphasizes how weak are your own.

Strong logic aside, I realize that in court rooms "logic doesn't always (usually?) preside". I firmly believe that logic is on our side here; but that doesn't equate to much assurance in a courtroom setting. If this hits a courtroom, we may resort to Plan B - which is to concede, and then simply not enforce these vastly unpopular restrictions. So either way, the plaintiffs won't get what they want, because they are in the scant minority.
JohnC46
(South Carolina)

Posts:9316


01/28/2020 9:55 AM  
Brian

Call it what you wish and argue the point ad nauseum as you are doing, but to me it is an Amendment and as such if I did not like it I would haul your a$$ to court and feel i HAVE A STRONG CASE.

Call it what you want, but a horse is still a horse.
GeorgeS21
(Florida)

Posts:2314


01/28/2020 10:13 AM  
Brian,

I am not trolling, simply making fun of your nonsensical argument.

I grin each time you post.
BrianK13
(Indiana)

Posts:94


01/28/2020 10:17 AM  
Posted By JohnC46 on 01/28/2020 9:55 AM
Brian

Call it what you wish and argue the point ad nauseum as you are doing, but to me it is an Amendment and as such if I did not like it I would haul your a$$ to court and feel i HAVE A STRONG CASE.

Call it what you want, but a horse is still a horse.

And a "termination" is a "termination" ==> "bringing a restriction to an end, against wooden/shingled/matching sheds". By the definition of "termination", that is exactly the only thing our change will accomplish.

A good judge would rule against you. I think you would lose your case and money. And even if you won, to what end? The board will stop enforcing this restriction, where the HOA has shown vast support against it, and you still won't have enforcement against sheds. So what did you gain by your obstinance for sake of a minority interest? It seems you are working to make the world a "worse place" for the majority. Does that concern you?

If we get 51% of the votes, it will require at least 75% support from those willing to vote -- and these same 75% are the ones who will vote for the board.

If we get 66% of the votes, it will require at least 90% support from those willing to vote -- would you really sue against the interests of 90%, at the cost to the HOA? The board will be indemnified via argument of "reasonable action" or "having an attorney sign off on it". The HOA itself will bear the costs of your action, all for sake of minority interest.

Not sure what your motivation would be here. And in truth, I doubt you would actually do it, because it would make you very unpopular among neighbors.
BrianK13
(Indiana)

Posts:94


01/28/2020 10:29 AM  
Posted By GeorgeS21 on 01/28/2020 10:13 AM
Brian,

I am not trolling, simply making fun of your nonsensical argument.

I grin each time you post.

OK smarty pants. What is your logical argument against mine? Please lay it out. You've yet to demonstrate your logic skills.

Our solid argument is simply:
1. Termination is defined as "Bringing to an end".
2. Our changes ONLY "are bringing a restriction against wooden/shingled/matching sheds, to an end". Thus it's a termination.

Here are vital Litmus tests applied to the implications of this argument:
(this is an important step in logic, to make sure the implications of your conclusion also make sense)
1. It allows partial terminations to be treated the same as full terminations. Logistically, this makes perfect sense. Why should smaller terminations be harder to pass than bigger ones?

2. It prevents a state of contention and lawlessness, by helping Boards to align the Restrictions with majority opinion, after 20 years have passed. This is a good thing. Lawlessness or having only 25% support for a restriction is a bad thing -- it won't be enforced.

3. It prevents boards from having to take an "all or nothing" approach to termination. If you don't permit "partial terminations", this might force boards to "terminate more than they wanted" (throwing the baby out with the bathwater). And so partial terminations are a very good thing, which should be embraced.

===
There's my logical case. Now please present yours.
GeorgeS21
(Florida)

Posts:2314


01/28/2020 11:50 AM  
I will be entertained, I’m sure, but one has to know when to stop talking about silly things - and, move on 🙂
BrianK13
(Indiana)

Posts:94


01/28/2020 12:18 PM  
Posted By GeorgeS21 on 01/28/2020 11:50 AM
I will be entertained, I’m sure, but one has to know when to stop talking about silly things - and, move on 🙂

Yeah probably. I think I've gotten what I need from this discussion, and hopefully it was entertaining for others as well.

I've learned that we're up against a beast called "convention", which largely influences people's perception/views. If it "looks like a horse; it must be a horse" is the default common thinking.

We're going to have to go to great lengths to preface our submission with a legal argument explaining that the SOLE impact of our text is to "bring an end to certain restrictions", which according to the dictionary, qualifies all of our text as "terminations", and therefore rightfully only requires 51% vote.

So for me, this discussion has been fruitful, and I owe my gratitude and appreciation to all those who responded with opposing views and arguments. Thank you!
AugustinD


Posts:2932


01/28/2020 12:25 PM  
Posted By BrianK13 on 01/27/2020 8:23 PM
Say we can only obtain 66% signatures, and no matter how hard we try, can't get the last 1%. And so an amendment to allow sheds fail.
Has your board considered extending the deadline to vote as needed? Using this legal strategy, some here have reported success in getting amendments passed. If the vote comes up short, the board can send delegates to the homes of those who have not submitted a vote yet and make a pitch for it, or appear with proxy in hand.

I think you said there are already a lot of sheds, and their illegality is a concern. And you are right. At some point (maybe now), all sheds will be allowed because the covenant is considered abandoned.

People here absolutely do often support amendments to the covenants. It is suggested often when the covenants are ambiguous, for example. An amendment makes sense in your HOA's situation as well.

Regarding people here being overwhelmingly in favor of enforcing covenants: I think this is not so. Often times folks advise looking the other way. E. g. many HOAs have covenants restricting or flat out prohibiting trucks or similar large vehicles of a seemingly commercial nature. The covenants were typically written before everyone and her sister had a pickup. Lots here say to hell with such restrictions on pickup trucks.
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