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Subject: Voting rights of the membership
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LarryW5
(Ohio)

Posts:7


02/17/2013 8:41 AM  
This is my first time posting on HOAtalk I have been on many committees and volunteered my services as well, I have not yet been a board member but will be running in the upcoming election. Since I am considering running for the Board, I have spent many many hours reviewing State Laws, and our own governing documents so that have proper knowledge of these governing documents which we are supposed to follow. My question to this forum and to all the knowledgable persons who help give advice is as follows.

I am trying to decipher what the members correct voting rights are. In the past only members in good standing were allowed to vote on amendments to either by-laws, The CC&R's which are our deed restrictions or The Articles of Inc. In reading our documents I noticed that there is conflicting wording between the CC&R's, By-laws and Articles. Listed below are actual quotes from our governing documents:

Articles of Inc.: 1)Voting Rights: Each member of the Corporation shall be entitled to such voting rights as provided in the By-Laws of this Corporation.
2)Amendments to these articles shall require the approval of members excerising not less than a majority of the voting power of
members.

CC&R's: AMENDMENTS: The right is hereby expressly reserved to amend, annul, waive, change, enlarge and modify any of the restrictions herein
contained by an instrument in writing, signed and acknowledged by the Association or its assigns, and the owners of the majority of
the lots in said subdivision. For purpose of amendment, a land contract vendee shall be considered an owner. All such instruments
executed, in writing, for the purposes herein shall be filed for record with the County Recorder.

The By-Laws: VOTING POWER: Except as otherwise provided in these By-Laws, the Deed Restrictions, The Articles of Incorporation of the
Association, or by law, a majority of the voting power of voting members in good standing present at any duly convened
meeting in person or by absentee ballot shall be sufficient to determine any matter.

SUSPENSION OF MEMBERSHIP: During any period in which a member shall be in default in the payment of any dues, or any annual or special
assessment levied by the Association, or shall be in default of the performance of any other obligation of a members of this
Association, the voting rights and the right to use of the Common Facilities by such member shall be suspended by the Board
of Directors until such dues or assessment has been paid, or such default cured, in the discretion of the BOD.

It is my understanding that if there is conflicting language between the documents that the prevailing document, which would be the CC&R's should prevail because it is the Deed Restrictions that run with the land and is binding upon the Association and upon all the members property. Can you please give me your interpretation on this matter.
JohnB26


Posts:0


02/17/2013 8:54 AM  
the hierarchy is:

+ government (incl. any state corp. law)

+ CCRs ~ restrictions and covenants

+ Art. of Inc. ~ to avoid personal liability

+ By-Laws ~ rules of operation for the corp. HOA
CarolR11


Posts:0


02/17/2013 9:50 AM  
Welcome to the forum, LarryW5! And kudos to you for doing your homework prior to seeking board service. I know you'll be a real asset to your community.

Your Articles seem to refer readers to you bylaws re: voting rights. Your articles say "voting power," which I think means qualified voters. Your CC&Rs & bylaws both seem to say that a majority of the lots can amend either document. Your bylaws seem to elaborate on your CC&Rs by saying that in order to vote, Owners must be in good standing, and you've included that definition under the heading Suspension of Membership. So, it doesn't appear that there's a contradiction.

Do your bylaws state the % of voters needed to elect directors? Ours do, and it's a majority of a quorum of qualified members.

I'm not a part of the legal profession. If it's true you only need a majority of qualified voters to amend your CC&Rs, your HOA would have an easier time than many we see on this Forum where often up to 66 % (my HOA) or even 75% of the voting power is required to amend the CC&Rs.
FredS7
(Arizona)

Posts:919


02/17/2013 9:55 AM  
I'm not sure I understand where there is a contradiction

- the CC&Rs say members are entitled to voting rights as provided in the Bylaws

- the bylaws say members that are in arrears can't vote.

Can you explain?
LarryW5
(Ohio)

Posts:7


02/17/2013 10:18 AM  
Hi Fred
The way I read and understand the ccr's never mention only members in good standing.Since the ccr's are a deed restriction on someones property that is everlasting until the association is desolved and the deed restriction removed , a property owner should have some say in the property they own, even though they signed a civil binding contract.It never should have been mentioned in the ccr's if it was addressed in the bylaws.Because the bylaws and the ccr's read differently this is why I said they are conflicting.Please correct me if I'm wrong. Thanks for your input Fred
LarryB13
(Arizona)

Posts:4099


02/17/2013 10:27 AM  
Larry,

There have been numerous threads raising the question of "voting" for CC&R amendments.

If you re-read the section you quoted about CC&R amendments, you should notice that nowhere does it refer to a vote or election nor does it refer to members in good standing. CC&R's are amended by signing a written document (indicating approval) and recording it. Any owner may sign regardless of his standing with the association. If your association has previously interferred with the owners' rights to amend the CC&R's or imposed some other scheme to amend them, shame on them.

FredS7
(Arizona)

Posts:919


02/17/2013 10:41 AM  
LsrryW5

You still haven't clarified matters. What EXACTLY do you see as a contradiction? Or do you mean to raise a question about what is fair- an entirely separate matter??

LarryW5
(Ohio)

Posts:7


02/17/2013 10:43 AM  
Thanks Larry
Thats exactly what I was trying to say and just did'nt know how to say it.This has been happening for a long long time. we have been voting on ammendments to the ccr's but only members in good standing were allowed to vote.Thanks BOY this site is a wealth of information KUDOS to ALL of YOU.
GlenL
(Ohio)

Posts:5491


02/17/2013 2:34 PM  
Larry state law trumps CC&R's, AIC & Bylaws, 5312 for stand alone homes and 5311 for condos both allow the Board to: Suspend the voting privileges and use of recreational facilities of an owner who is delinquent in the payment of assessments for more than thirty days;

While I suspect the INTENT was to suspend voting privileges for general elections, it unfortunately doesn't specify and could be used to deny voting for anything that requires a vote. Note it doesn't say anything about changing quorum requirements or vote percentages. So if to change the CC&R's you needed 75% to vote yes and you have 100 homes with 26 unable to vote the measure automatically fails.

Studies show that 5 out of 4 people have problems with fractions
LarryW5
(Ohio)

Posts:7


02/17/2013 3:17 PM  
GlenL
Thanks for your reply. Now I'm really confused. No percentage is mentioned,Just that only a majority of members in good standing will determine the vote. Does this mean if we have 400 members in good standing and the vote count is 100 ya votes and 99 nea votes the amendment still fails because we did not get the required 201 vote majority.Or would the 75% mentioned in orc5312.05 supersede if a percentage is not mentioned in our docs. Thanks
GlenL
(Ohio)

Posts:5491


02/17/2013 6:12 PM  
5312.05 Amendments to declaration or bylaws.
(A) Unless otherwise specified in the declaration or bylaws, the owners may amend the declaration and bylaws by the consent of seventy-five per cent of the owners, either in writing or in a meeting called for that purpose. No amendment to the declaration or bylaws is effective until filed in the office of the county recorder. (B) A vote to terminate the applicability of the declaration and to dissolve the planned community requires the unanimous consent of owners.

Larry your "majority of members in good standing" would appear to satisfy the "Unless otherwise specified" part of the law so I think you are OK. And yes for CC&R amendments I would think 201 would be required. With the "majority of members in good standing" you can lower the needed votes. Using your 400 members if 33 were ineligible to vote then you would need 184 votes to pass instead of 201.

Studies show that 5 out of 4 people have problems with fractions
JohnC46
(South Carolina)

Posts:9322


02/17/2013 6:34 PM  
Aha the gottcha ya......

5312.05 Amendments to declaration or bylaws.
(A) Unless otherwise specified in the declaration or bylaws, the owners may amend the declaration and bylaws by the consent of seventy-five per cent of the owners, either in writing or in a meeting called for that purpose. No amendment to the declaration or bylaws is effective until filed in the office of the county recorder.

The declaration or bylaws of an association might well say something quite different and most often do.

SC Articles of Incorporation for a Non Profit Corporation are riddled with the ...Unless...which for all intensive purposes, makes them useless or if not useless then at least "subservient" to the associations docs.

LarryW5
(Ohio)

Posts:7


02/17/2013 7:29 PM  
Thanks again Glen and JohnC
Now our bylaws read AMENDMENTS TO THE BY-LAWS
These By-Laws may be amended with the approval of the majority of voting members in good standing of the Association,present at any duly convened meeting in person or by absentee ballot.
So to change the By-Laws it is not based on ALL the members in good standing ,just whom ever is present and the absentee ballots that are turned in. THIS IS A BIG PROBLEM since only about 20 to 25% of the members vote.IT would be very easy to get any change adopted good or bad,and lately most amendments were not in the best interests of the community.
LarryW5
(Ohio)

Posts:7


02/17/2013 7:39 PM  
Sorry I meant to say 30 to35% I did'nt see it till after I sent my reply.So much for proof reading before hitting send DA
LarryB13
(Arizona)

Posts:4099


02/17/2013 11:37 PM  
Posted By LarryW5 on 02/17/2013 7:29 PM
So to change the By-Laws it is not based on ALL the members in good standing ,just whom ever is present and the absentee ballots that are turned in. THIS IS A BIG PROBLEM since only about 20 to 25% of the members vote. IT would be very easy to get any change adopted good or bad,and lately most amendments were not in the best interests of the community.




I hate to say it but this is common not just in HOA's but in real life as well. Only half of those eligible to vote in public elections are even registered. I've seen city elections where only 20% of the registered voters turn out. The majority required to win is one half of twenty percent of one half; just five percent of the eligible voters determines who runs your city. In national elections, only 2/3 of the one half registered bother to vote and only are needed to determine the outcome. Your president, representatives, and senators are elected by about one sixth of the eligible voters.

I think the late George Carlin said, "Think about how dumb the average person is. Then remember that half of them are even dumber than that."

NancyG3
(North Carolina)

Posts:337


02/18/2013 5:13 AM  
Larry - In our Assn By-Laws in NC under Miscellaneous,the last paragraph states "In the case of any conflict between the Articles of Inc and these By-Laws, the Articles of Inc shall control; and in the case of any conflict between the Declaration and these By-Laws, the Declaration shall control."

Check and see if you have a statement like this in your By-Laws.
LarryW5
(Ohio)

Posts:7


02/18/2013 7:48 AM  
LarryB13
Thanks Larry, you hit the nail on the head. After rereading many times I see that the Articles of Inc.,The By-Laws can be amended by a majority of the members in good standing.The CCR'S on the other hand says the use of common areas can be denied BUT to amend the CCR'S A Majority of lot owners would determine an amendment to the CCR'S.Not just a vote by members in good standing. I believe this is how it should be since it affects an owners property for the duration of the association and is applying a deed restriction to that property.A deed restriction runs with the land.
Thanks again Larry BOY what a learning experiance this has been!!!!
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