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Subject: Bylaws & CCR's
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Author Messages
BB2
(Missouri)

Posts:36


09/16/2007 12:08 PM  
We have a very small subdivision (27 votes) there used to be 2 HOA's in 1992 one HOA voted to release all CCR's and bylaws and combined with the other HOA. We do not have CCR's and Bylaws the document is titled Bylaws and Restrictions from several of the posts I have read a HOA is to have both if this is the case what effect does not having both have on our HOA? (This document was recorded but signatures were cut from other documents and glued to the Bylaws & Restrictions before it was recorded)
RobertR1
(South Carolina)

Posts:5164


09/16/2007 5:22 PM  
BB2,
Go to court house and search any entries dealing with your HOA and the one you merged with. What state are you in? Look up business filing for the state and see if you are Incorporated. You probably come under some state statute. If you can not find any evidence of your merger in court house, or other records concerning your association you are probably no an association. Some where in the original CC&R's filed with the state you will find some procedures for merging two HOA's. Did you have a lawyer handle the merger, find out and ask him what is going on. Your documents are missing the State Staute, the Incorporation papers, the Master deed and all the exhibits describing the property. Not to mention the Board minutes, records of meetings, financial data, tax filings, and God knows what else. What document was recorded where? Any signers still around, who maintains your books, do you have a board?
MarshaF
(Oregon)

Posts:36


09/17/2007 9:10 AM  
I have a question about this topic also. We are an Oregon HOA with 2 phases to our PUD. Phase One is complete and sold. Phase Two has just begun. When the developer wrote up the Bylaws and CC&R's with his lawyer they were written for both Phase One & Two. Now the developer is beginning to sell lots in Phase II but wants to make stricter CC&R's for just Phase II, since those lots are highly viewable from the lake and must blend more with the environment. I am not opposed to this, but from a legal standpoint, can he make changes to the CC&R's without the approval of the BOD, and without any sort of vote, since these documents cover both Phase One & Two ? I spoke to the lawyer who drew up the docs and he said that since Phase Two CC&R changes do not effect the lots in Phase One, they don't need to be approved of by the BOD.
What are your thoughts ?
RogerB
(Colorado)

Posts:5067


09/17/2007 9:23 AM  
Marsha, read your CC&Rs to determine what is required to amend them. The Developer may still own a sufficient number of lots to have the votes necessary to amend. For example, the CC&Rs may require 67% of the votes of all lots in Phase I and Phase II; and Class B owners, the Developer, may have several votes per lot while the homeowners, Class A, have one vote per lot.

I think the attorney may have been parsing words to remove your concerns. The changes may only relate to certain things which only occur in Phase II but they would also apply to Phase I and need to be voted on by all owners in both sections.
MarshaF
(Oregon)

Posts:36


09/17/2007 10:34 AM  
Hi Roger,
Thank you for the input. I can always count on you for good, sound advice. Our CC&R's don't have any reference to Class A or B owners. The developer only has 16 lots in Phase Two,so out of a total of 41, he does not have a majority of the votes. Our CC&R's only state that after 25 years, the CC&R's may be changed by a majority vote of 75% anything sooner than that and it's a majority vote of a quorum.
Even if the CCR changes he proposes don't directly relate to Phase One, they are still part of us so we should still have a say in it.
Thanks again,
Marsha, Pres. HOA
DaneC
(California)

Posts:210


09/17/2007 11:15 AM  
Posted By MarshaF on 09/17/2007 10:34 AM
..a total of 41, he does not have a majority of the votes. Our CC&R's only state that after 25 years, the CC&R's may be changed by a majority vote of 75% anything sooner than that and it's a majority vote of a quorum.
Marsha, Pres. HOA



If a quorum is defined as more than 50% of the members, then in your case that would be 21. A majority vote with 21 members is 11. Therefore you need a meeting with 21 members present, with 11 voting for the changes, in order to achieve your goals.
If a quorum is 2/3, then it would be 28 votes, with 15 being the majority.
A 75% quorum would be 31 votes, with 16 being the majority.
RogerB
(Colorado)

Posts:5067


09/17/2007 11:39 AM  
Posted By MarshaF on 09/17/2007 10:34 AM
Hi Our CC&R's only state that after 25 years, the CC&R's may be changed by a majority vote of 75% anything sooner than that and it's a majority vote of a quorum.


Marsha, your CC&Rs seem dangerous to me. A majority vote of a quorum can be as few as 10%+1 of all owners when a quorum is 20%.I would never amend the CC&Rs without, at a minimum, written approval of a simple majority (50+%) of every owner.
TracyT
(Maryland)

Posts:228


09/17/2007 12:15 PM  
Roger, I agree. I think there may some confusion of the terminologies.

For example, in my HOA we have 3 different documents; CCR, Art. of Inc. and By-law (in order of precedent, respectfully).

The CCR is in effect for 30 years and may only be changed by 90% approval of the association. At the end of the 30 years the CCR will automatically extend in ten year increments. However, after the first 30 years it can be changed by 75% approval of the association. (there are a few other voting requirements in there like the amount and type of insurance and raising annual assessment more than 20% etc.)

Art. of Inc. can be changed by 90% approval of the association.

The By-laws define voting on matters other than described in CCR, Art. of Inc. and By-law. Such as voting for HOA BODs, rule changes etc. This requires a quorum of 15% and 51% of the quorom approval for a change. There is also an allowance if a quorom is not obtained in that those present at a rescheduled meeting make a quorom. Changes to the actual By-law is as described here.

The difference in the various voting requirments, in my docs., can be subtle particually if you are not aware of which section you are in. While the docs. flow, I have found that you can't just skim them once or twice.

Regarding the developers rights to change the CCR, my docs. say he can. In fact he had time after he turned over the association to the owners to do so. Then again my docs. define class A and B members. I would double check.

I hope this helps. Good luck.

RobertR1
(South Carolina)

Posts:5164


09/17/2007 12:59 PM  
Marsha,
It certainly would be proper to have a good read of how the Association was recorded in the courthouse. If the developer did it, read carefully.
Are you incorporated and how? Both phases? How does your Business listing with the state read? Do you have an independent lawyer you can utilize?
Get his opinion in written form and get a retired judge or lawyer or take it to some other lawyer.

I seeem to lean towards on the surface the developer might still hold the reins, so look for what mistakes or loopholes he may have created. Crap, you can't take nothing at face value any more. More times than not mistakes are made.

In fact the whole HOA condominium documents are more interpertations than law, and one fine day they will have to be all redone from the feds to the states to the associations, IMHO
MarshaF
(Oregon)

Posts:36


09/17/2007 2:28 PM  
Thank you to everyone for all the helpful information. I will seek legal advice here in Oregon about these issues. I feel the same way - everything is open to interpretation ! Just depends on the size of the wallet...
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