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Subject: Termination vs. Amendment - Take 3
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BrianK13
(Indiana)

Posts:94


02/03/2020 6:05 PM  
Reposting to get a clean start on a thread:
This is a revamp of the first thread I posted, where I was proposing that termination could be applied to subsets of clauses (e.g. allow some sheds, but not all sheds).

Now I'm just wondering who out there has witnessed use of the "termination" clause to conduct the "removal" of certain clauses.

Our CC&R's document that termination can be done with 51% vote while amendments require 67%. And so, it may be appropriate to "terminated" (i.e. remove) some clauses based on the 51% vote.

I've heard some argue that the "Termination" mentioned in CC&R's always and only refers to the WHOLE document at once, and not just parts of it.

And I've also heard others agree that it can be applied to individual Restrictions, so long as you are just simply "REMOVING" a clear-worded restriction (e.g. "no sheds", removed).

What is the truth here? Is the Termination clause *only* permitted to apply to the WHOLE document at once?

Our TERM clause reads as follows:
29. TERM. The foregoing plat covenants and restrictions,
as the same may be amended from time to time, shall run with the land and shall be binding upon all persons or entities from time to time having any right, title or interest in the Real Estate and on all persons or entities claiming under them, until December 31, 2013, and thereafter they shall continue automatically in effect unless terminated by a vote of a majority of the then Owners of the Lots in the Subdivision; provided, however, that no termination of these covenants and restrictions shall affect any easement hereby created and reserved unless all persons entitled to the beneficial use of such easement shall have consented thereto in writing.
BrianK13
(Indiana)

Posts:94


02/03/2020 6:05 PM  
Here are quotes from previous thread, for statements that seem to support the notion that "termination" can be applied to eliminate individual restrictions, so long as you are eliminating the whole clause:

GeorgeS21: "It would be a termination if you completed deleted all mention of sheds."

AugustinD: "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."

SheilaH: "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."

===
All three of the initial responders seemed to agree that it would be OK to terminate "whole clauses" instead of in part (as I was originally proposing).


So do you all still agree with your original statements?
MelissaP1
(Alabama)

Posts:9130


02/03/2020 8:41 PM  
We changed our CC&R's, By-laws, and Articles of Incorporation because terms changed within our HOA. By-laws/Articles of Incorporation (IA) required 75% of owners vote. The CC&R's took 90%. They don't always take the same voting # for changes. Also By-laws don't necessarily need to be filed like CC&R's or IA's. It's one of actual internal documents of the HOA. The others are PUBLIC. However, most of the time by-laws are filed with the CC&R's whether or not required.

Having said that, we modified our HOA's for 5 different things. 1 was removal of ALL references to the Developer. He was long gone for years. 2nd was references to the 2 voting system. 3rd was to reflect we no longer had 1 water meter. Everyone has their own separate water meters. We were able to turn off water if you did not pay. Another thing changed.

We also had a requirement this vote for changes had to be done at a special meeting. Which was not possible. So we had the lawyer draft up an additional document to sign giving up your right to cast your vote at a special meeting. This allowed us to go door to door to collect the necessary votes or take at regular meetings.

It took us nearly 2 years and several thousand dollars to get done. There is a charge to file. Plus the cost of the attorney, document changes, and distribution of the changes. There is NO easy way to do it.

So don't know what your hang up is. The HOA has the power to make it's own rules with the proper votes. If people want certain type of sheds, then feel free to follow the process to make it happen. What is holding you back except doing the leg work of getting the votes and board approval to spend the money?

Former HOA President
BrianK13
(Indiana)

Posts:94


02/04/2020 4:49 AM  
Posted By MelissaP1 on 02/03/2020 8:41 PM
We changed our CC&R's, By-laws, and Articles of Incorporation because terms....

Hi Melissa, thanks for your comprehensive account here. That was very well explained.

What I'm asking about specifically here is the application of our CC&R's section 29 shown above. It says that restrictions/covenants can be terminated with simple majority vote, but is non-specific about the scope of these terminations. The 3 folks from this site that I quoted above, gave their vote of approval for applying this clause in a piece-meal fashion (e.g. for the simple removal of the restriction against sheds).

I'm trying to gather more input on this concept/approach. I've heard some declare that this section 29 can only be used to terminate the WHOLE document, or none of it. The final clause of section 29 refers to "no termination..." which clearly isn't talking about the whole document, or it would have been written "provided that no covenant or restriction affects..." (if all truly have to be terminated in unison), but this final clause seems to indicate which ones can be terminated with simple majority vote, and which ones cannot. To me, that means these terminations were meant to be applied to individual restrictions, if desired.

For other amendments, the vote required is 67%. But for terminations, the vote required is only 51%. Thus there are some terminations that people want to see here, which might only garner 66% vote, and the question is, "can these restrictions be terminated with a 66% vote?"

I'm looking for opinions, case-law examples, and any other examples that folks might know about regarding this concept - "terminations vs. amendment" - for the simple "removal" of individual restrictions.
PaulJ6
(New York)

Posts:742


02/04/2020 5:06 AM  
Posted By BrianK13 on 02/04/2020 4:49 AM
I'm looking for opinions, case-law examples, and any other examples that folks might know about regarding this concept - "terminations vs. amendment" - for the simple "removal" of individual restrictions.




And people have responded over and over and over and over and you've rejected everything that suggested that you should try another approach. ENOUGH!
BrianK13
(Indiana)

Posts:94


02/04/2020 5:20 AM  
Posted By PaulJ6 on 02/04/2020 5:06 AM

And people have responded over and over and over and over and you've rejected everything...

The first three to respond on the other thread seemed to concur that "termination can be applied to individual restrictions" so long as the action was simple "removal" of a clause/stipulation. I have included their quotes above for reference. So now I'm reasonably seeking advice regarding this stricter approach.
AugustinD


Posts:2915


02/04/2020 5:34 AM  
Your initial post in the other thread stated, "...any covenant may be *terminated* with only a 51% approval... " The statement in your initial post turns out to be false. So all statements relying on your false statement have little to no value, depending.

Subsequently I requested the easement coveants. You failed to post them.
SheliaH
(Indiana)

Posts:3054


02/04/2020 6:23 AM  
I read the termination vs. amendment part II conversation, where PaulJ6 wrote “Going on and on and on and on and on after you've made your points over and over, just to talk AT people, when they've made their points and you've ignored them. And expecting people to respond to every inane request and argument you make, when you'll ignore what they say anyway? Unfortunately, clearly you scheme and plot to do illegal things, to run over people who you consider poor and stupid. That alone is bad enough.”

THAT’S my response to this thread. Put another way, no, I haven’t changed my mind about this being an amendment.

I can’t remember if you’re on the board, but if you are, why haven’t you gone to the association attorney with your question instead of trying to justify making a change without going through the process of having your attorney help you with crafting an AMENDMENT that will be clear to homeowners? If you’ve bothered to read the rest of your documents, you’ve probably seen language stating a certain percentage has to approve any changes to the CCRs. That would mean dumping a section altogether, adding a new one or AMENDING a section.

Your primary issue appears to be whether the community should allow sheds and if so, under what circumstances. Focus on talking to the board and your neighbors about that, and if enough people agree, there can be more discussion on whether specific criteria should be put in the CCRs or of the board should set those standards. Whatever the community decides, the attorney can help craft language that will be clear and stand up in court.

That’s the last I will say on this subject – have a nice day.
BrianK13
(Indiana)

Posts:94


02/04/2020 6:30 AM  
Posted By AugustinD on 02/04/2020 5:34 AM
Your initial post in the other thread stated, "...any covenant may be *terminated* with only a 51% approval... " The statement in your initial post turns out to be false. So all statements relying on your false statement have little to no value, depending.

Subsequently I requested the easement coveants. You failed to post them.

How do you conclude my original statement was false? Today, I just spoke with a lawyer who will support our individual terminations, and will stand behind it. However, like all of you, he doesn't support my concept of "partial termination" because it looks too much like an amendment. This lawyer will warranty his work, to the point of accepting liability if there is any form of malpractice/wrongdoing accusation, indemnifying our HOA from wrongdoing, as stated in our Declaration (if board is acting under outside paid advice, the whole HOA is indemnified).

Truth in this matter seems to be a matter of viewpoint and opinion.

AugustinD, have you have heard of termination clause being applied to individual restrictions, vs. the Whole document?

The sections on easements alone, #3-#5 is 3 pages of text, and mentions how these will be governed, such as our lake - we are permitted to promulgate usage rules, and our rights to do landscaping, etc. Standard stuff, but clearly can't just "go away with 51% vote".
AugustinD


Posts:2915


02/04/2020 6:41 AM  
Posted By BrianK13 on 02/04/2020 6:30 AM
How do you conclude my original statement was false?
I can appreciate that you do not see a difference between

1.
your statement claiming "...any covenant may be *terminated* with only a 51% approval... "

and

2. the actual covenant (as quoted by Brian):
"29. TERM. The foregoing plat covenants and restrictions,
as the same may be amended from time to time, shall run with the land and shall be binding upon all persons or entities from time to time having any right, title or interest in the Real Estate and on all persons or entities claiming under them, until December 31, 2013, and thereafter they shall continue automatically in effect unless terminated by a vote of a majority of the then Owners of the Lots in the Subdivision; provided, however, that no termination of these covenants and restrictions shall affect any easement hereby created and reserved unless all persons entitled to the beneficial use of such easement shall have consented thereto in writing."

It's the usual Rush Limbaugh-esque nonsense from you.
BrianK13
(Indiana)

Posts:94


02/04/2020 6:53 AM  
AugustinD, if it was nonsense, then we wouldn't have received agreement from 2 out of 3 attorneys spoken with to support the termination of our restrictions individually. Maybe it's just an Indiana thing.

The lawyer that claimed it was All vs. Nothing, had me concerned. And wanted to know the experience of others here.

So far, no one in these forums has told us that they've actually seen a termination clause applied to individual clauses.
PaulJ6
(New York)

Posts:742


02/04/2020 8:37 AM  
Posted By BrianK13 on 02/04/2020 6:53 AM
AugustinD, if it was nonsense, then we wouldn't have received agreement from 2 out of 3 attorneys spoken with to support the termination of our restrictions individually. Maybe it's just an Indiana thing.

The lawyer that claimed it was All vs. Nothing, had me concerned. And wanted to know the experience of others here.

So far, no one in these forums has told us that they've actually seen a termination clause applied to individual clauses.




You lie.

As you stated before, one lawyer didn't promise that it would hold up in court. That's not agreement with terminating the restrictions individually. That's saying, "I'll take your money but I won't stand behind any assertion that this is valid or lawful."
TimB4
(Virginia)

Posts:16700


02/04/2020 9:08 AM  
Posted By BrianK13 on 02/03/2020 6:05 PM

I've heard some argue that the "Termination" mentioned in CC&R's always and only refers to the WHOLE document at once, and not just parts of it.

And I've also heard others agree that it can be applied to individual Restrictions, so long as you are just simply "REMOVING" a clear-worded restriction (e.g. "no sheds", removed).

What is the truth here? Is the Termination clause *only* permitted to apply to the WHOLE document at once?

Our TERM clause reads as follows:
29. TERM. The foregoing plat covenants and restrictions,
as the same may be amended from time to time, shall run with the land and shall be binding upon all persons or entities from time to time having any right, title or interest in the Real Estate and on all persons or entities claiming under them, until December 31, 2013, and thereafter they shall continue automatically in effect unless terminated by a vote of a majority of the then Owners of the Lots in the Subdivision; provided, however, that no termination of these covenants and restrictions shall affect any easement hereby created and reserved unless all persons entitled to the beneficial use of such easement shall have consented thereto in writing.





Per your supplied citation, the CC&Rs in their entirety may be terminated by a majority vote.

Anything else, per your citation, is to be amended per the paragraph that discusses amending the document.



BTW: for any who are interested, here is a link to the first thread:

Subject: CCR Termination vs. Amendments
BrianK13
(Indiana)

Posts:94


02/04/2020 9:56 AM  
Posted By PaulJ6 on 02/04/2020 8:37 AM
You lie.

One lawyer said they'd do the original proposal, but without warranty. But two would do it if we just did simple "removal" style terminations without including a spec. The last one I spoke to, a very good lawyer, said he'd give this 85% chance of prevailing if brought before a judge. It's clear from the final clause when it says "providing that no termination" is applicable to individual items. Sections 3-5 cannot be terminated by majority vote, nor can other clauses that affect an easement. Additionally, the failure to capitalize the "plat covenants and restrictions" is also an indicator that this section applies to a "set of agreements" and not the whole document, as when it's mentioned elsewhere, this reference is capitalized as "Plat Covenants and Restrictions". Additionally, the Declaration document term section, for it says "unless terminated or modified by a majority vote."

The combination of factors, leads them to say that Section 29 can be applied to individual covenants, with more certainty than not. But if we aren't doing just "simple removals", then they think it is more prone to be overturned if challenged.

So the proposal has changed.

I'm wondering if anyone here has ever seen the "Term" clause applied to individual clauses? In my first thread, the first 3 responses were affirmative. I'm wondering if those affirmations were just loose, and not meaningful, because they were instead focused on my replacement text, and weren't thinking things through when they argued it would be OK to "just remove them".

So far, I'm guessing that no one here has ever seen Term be applied for the removal of specific restrictions.

Or has anyone seen it "fully terminated", and if so, then what happens to the clauses that affect easements? Does the document live on with only those clauses, or does it get rolled into some new replacement document?

So far, I've heard a lot of opinions, but no cases where the "TERM" clause was invoked. I think everyone here only has firsthand experience with amendments.

And PaulJ6 - I pointed out that I thought your self-proclamation *might* not be honest (I had doubts), whereas you simply say "you lie", without really understanding what you are assessing.
TimB4
(Virginia)

Posts:16700


02/04/2020 9:59 AM  
Brien,

I believe that you will do what you want.

That you are simply looking for validation.

I believe the active posters have provided their opinions.

As you know, you are free to take all, some or none of the opinions offered.

I wish your Association luck.
BrianK13
(Indiana)

Posts:94


02/04/2020 10:00 AM  
Posted By TimB4 on 02/04/2020 9:08 AM
Posted By BrianK13 on 02/03/2020 6:05 PM
Per your supplied citation, the CC&Rs in their entirety may be terminated by a majority vote.
Anything else, per your citation, is to be amended per the paragraph that discusses amending the document.

Thanks for the comment. Can you tell me how you *know* this to be true? I have two Indiana HOA lawyers who claim otherwise, one very well respected/smart. The other, probably not so much (the one who would sign off on my 1st proposal).

Do you have actual experience with the invocation of the TERM clause? And if so, what happens to the covenants that affect easements?

I'm not arguing my case in this thread. Just trying to gather real examples, and more opinions on this revised proposal (which seems more mainstream, acceptable to more people).
BrianK13
(Indiana)

Posts:94


02/04/2020 10:05 AM  
Posted By TimB4 on 02/04/2020 9:59 AM
Brien,
I believe that you will do what you want.
That you are simply looking for validation.

Actually, the discussion here has made us reluctant to follow the initial proposal. We're probably not going to do that, as it's too fragile.

Now I'm pursuing a modified option, and not many have actually weighed in on this. Although as we go on, I'm getting the feeling that most don't like the piece meal approach either.

I'm not sure how those thinkers justify the final clause of section 29, which clearly associates "no termination" to something less than the whole document, and the inclusion of that clause in effect makes the whole "majority vote" statement meaningless. Additionally, our Declaration actually says "terminated or modified by a majority vote"... I wonder what that means? Why say "modified"?
BrianK13
(Indiana)

Posts:94


02/04/2020 10:09 AM  
For reference, here's the associated section of our Declaration, where they include "modified" next to "terminated". This was written by same authors, and the Declaration is harder to amend (requires an actual meeting to vote, as well as 75% support to amend). Yet it says it can be "modified" with majority vote. Why?
==
12.3 Duration. These covenants, conditions and restrictions and all other provisions of this Declaration (as the same may be amended from time to time as herein provided) shall run with the land and shall be binding on all persons and entities from time to time having any right, title or interest in the Real Estate or any part thereof, and on all persons claiming under them, until December 31, 2013, and thereafter shall continue automatically until terminated or modified by vote in the majority of all Owners at any time thereafter; provided, however, that no termi¬nation of this Declaration shall affect any easement hereby created and reserved unless all persons entitled to the benefi¬cial use of such easement shall consent thereto.
==

The presence of this document gives weight to the interpretation of the CC&R's that it's termination can also be in the form of a "modification" (by removal of a subset of restrictions).
TimB4
(Virginia)

Posts:16700


02/04/2020 10:09 AM  
Brien,

As you should have learned by now, you have to read the paragraph in whole (at least the whole sentence).

Typically, CC&Rs don't include easements.
Most easements are for roads and utilities.

To me it's common sense.

I'm done with this and encourage others to be done as well.
BrianK13
(Indiana)

Posts:94


02/04/2020 12:22 PM  
Posted By TimB4 on 02/04/2020 10:09 AM
Brien,

As you should have learned by now, you have to read the paragraph in whole (at least the whole sentence).

Typically, CC&Rs don't include easements.
Most easements are for roads and utilities.

To me it's common sense.

I'm done with this and encourage others to be done as well.

We have common ground, where governance is specified in the CC&R's- Lake, Playground, median, and front signs. For example, they specify that the HOA can promulgate rules regarding lake usage, and playground usage, which then empowers our By-Laws to say things like "if you don't pay your dues, you can't use the playground" (which it does say).

After all this, still no one has presented any tangible experience with the 'TERM' clause. Perhaps no one here actually has direct experience with it.

Not sure why you are accusing me of not reading the whole paragraph/sentence/etc. I've read it all, and am not leaving anything out.

If I told you "You have 10 bills to pay, and you will continue to owe them until you have paid them, provided that no payment is for a bill that has already been submitted to a debt collector." Does this mean that you are only allow to pay or cancel these bills as a WHOLE, or does this sentence apply to each bill individually. In a sentence like this, it's a collection of bills, and they are paid or not paid separately. The "restrictions" are also just a collection of self-standing restrictions, and nothing in this doc says they can't be terminated individually. In fact, the Declaration itself says "terminated or modified by majority vote", which implies that termination was intended to be partial-in-nature, if you want.

I not only read the whole document, but the Declaration as well. And nothing therein says it's All or Nothing.

Thus the reason we have a smart lawyer (hard to find smart ones that do HOA law, IMO), who believes the courts have 85% chance of ruling in our favor on this one, so long as we stick with simple removals.

I'm wondering if anyone else has any actual experience with the "TERM" clause.
GeorgeS21
(Florida)

Posts:2308


02/04/2020 12:31 PM  
C'mon, let this thread die.

And, please don't respond to new ones.

I'm sure this poster has figured out a way to start another thread under another name - if it smells that way, please don't respond to that one, or this will simply start all over, again.
BrianK13
(Indiana)

Posts:94


02/04/2020 2:58 PM  
Posted By GeorgeS21 on 02/04/2020 12:31 PM
C'mon, let this thread die.

And, please don't respond to new ones.

I'm sure this poster has figured out a way to start another thread under another name - if it smells that way, please don't respond to that one, or this will simply start all over, again.

This was a modified concept with modified objective, but looks like there is nothing else to add. I'm guessing that this means that no one here has had any actual experience with invoking the TERM clause, or if they have, just not wanting to share it. Oh well.

I wish I could undo the first thread, and post the same concept but without the partial-termination-of-individual-restrictions, that threw everyone for a loop.

Now that we're aiming for simple terminations, I can hear crickets.
MelissaP1
(Alabama)

Posts:9130


02/04/2020 4:02 PM  
It sounds like we got the 51% required to end this thread and it's individual pieces...

Former HOA President
BrianK13
(Indiana)

Posts:94


02/04/2020 5:14 PM  
Posted By MelissaP1 on 02/04/2020 4:02 PM
It sounds like we got the 51% required to end this thread and it's individual pieces...

All in favor?.... "aye".
CD6
(Texas)

Posts:21


02/05/2020 7:15 AM  
Aye, let it die.
BrianK13
(Indiana)

Posts:94


02/05/2020 11:44 AM  
Some folks have asked me to update you on how things go... so here's a progress update.

We now have 3 out of 4 attorneys that we've spoken to that are willing to bat for us on this.

Our approach is that they will simply affirm our legal argument, which is a 2-page letter which explains the rationale behind our conclusion. So we are paying for the attorney to affirm that our conclusion regarding individual terminations is reasonable.

So now it's just a bidding war. $525 is the low-bid now, and we'll probably take that. The next lowest was $900, and the third hasn't made a bid yet.

Indemnity is fairly well assured as we have multiple attorney's willing to do this for us.

The one attorney who denied us wasn't a HOA lawyer; she does other types of property law. But the three that are bidding to do this letter, are all HOA attorneys.

It wasn't as hard as I thought (given the unpopularity that I have achieved with this proposal here in these forums).
MelissaP1
(Alabama)

Posts:9130


02/05/2020 2:59 PM  
What wasn't that hard? To hire a lawyer to do what you want them to do? Join the club... Most lawyers who tell you that aren't doing you any "favors".

Former HOA President
BrianK13
(Indiana)

Posts:94


02/05/2020 4:52 PM  
Not sure if I showed this here, but here's one of the clenching arguments, which comes from the Declaration, which reads:
==
12.3 Duration. These covenants, conditions and restrictions and all other provisions of this Declaration (as the same may be amended from time to time as herein provided) shall run with the land and shall be binding on all persons and entities from time to time having any right, title or interest in the Real Estate or any part thereof, and on all persons claiming under them, until December 31, 2013, and thereafter shall continue automatically until terminated or MODIFIED by vote in the majority of all Owners at any time thereafter; provided, however, that no termination of this Declaration shall affect any easement hereby created and reserved unless all persons entitled to the beneficial use of such easement shall consent thereto.
==

The Declaration is 100% explicit here that "modification" by majority vote is permitted. Of course we can assume that the type of modification it's talking about here is some form of termination.

But if you still think it's all-or-nothing, then why do you think the author included the words "or modified" here? Seems pretty explicit. How do you argue against this?

That's just one of 9 arguments, which indicate that termination is permitted to be applied to individual restrictions.

Anyhow - 3 of 4 HOA lawyers with good reputations easily agreed to the reasonableness of our conclusion.
PaulJ6
(New York)

Posts:742


02/05/2020 5:46 PM  
THREAD CLOSED
CD6
(Texas)

Posts:21


02/06/2020 7:20 AM  
It is readily apparent you are going to do whatever you want to do.
I agree with Paul, THREAD CLOSED.
BrianK13
(Indiana)

Posts:94


02/06/2020 9:56 AM  
Posted By CD6 on 02/06/2020 7:20 AM
It is readily apparent you are going to do whatever you want to do.
I agree with Paul, THREAD CLOSED.

We'll only do that which has a reasonable argument to support it. Several lawyers agree with us already (who are well established, already have full plates, and aren't hungry for business, willing putting themselves at risk).

Before just dismissing me as someone who just "does what they want", you should carefully consider our argument. For example, if it was "all or nothing" then why would the Declaration specifically choose to phrase it "terminated or modified"? I'd like to hear some answers on this one.
AugustinD


Posts:2915


02/06/2020 10:24 AM  
BrianK13, by any chance does the first paragraph of your Declaration's amendment section start with the phrase, "Except as otherwise provided in this Declaration, amendments to this Declaration shall be proposed and adopted in the following manner:"

(In advance: You're welcome.)

BrianK13
(Indiana)

Posts:94


02/06/2020 10:28 AM  
Posted By AugustinD on 02/06/2020 10:24 AM
BrianK13, by any chance does the first paragraph of your Declaration's amendment section start with the phrase, "Except as otherwise provided in this Declaration, amendments to this Declaration shall be proposed and adopted in the following manner:"

(In advance: You're welcome.)


That sentence is what our Declaration says verbatim. So what does that mean to you? (and thank you for your pertinent question)
AugustinD


Posts:2915


02/06/2020 10:41 AM  
BrianK13, if the light bulb has not already lit, then please consider the phrase, "Except as otherwise provided in this Declaration... " What does this phrase mean to you?

When it comes to the percentage of the membership required to modify/amend, what do you think the purpose of "Section 12.3 Duration" is?
BrianK13
(Indiana)

Posts:94


02/06/2020 10:52 AM  
Posted By AugustinD on 02/06/2020 10:41 AM
BrianK13, if the light bulb has not already lit, then please consider the phrase, "Except as otherwise provided in this Declaration... " What does this phrase mean to you?

When it comes to the percentage of the membership required to modify/amend, what do you think the purpose of "Section 12.3 Duration" is?

The conclusion isn't that simple.

Declaration section 11 "Amendments" says post-2014 it requires 75% vote to amend. Then Section 12.3 says post-2014, it's a "majority vote" to "terminate or modify".

So there is somewhat of a conflict here for post-2014 -- Section 11 says 75% to "amend", and Section 12.3 says 51% to "terminate or modify". Both sections have a "post-2014" stipulation.

So to terminate a single restriction, I would assume that Section 12.3 rules, since we're talking about a termination-style modification, since it bothered to say "or modified".

What is your interpretation here?
AugustinD


Posts:2915


02/06/2020 11:14 AM  
Section 11.1 is the section that has the statements about, post-2013, it takes 75% to amend. What part of Section 11.1's first statement, "Except as otherwise provided in this Declaration... " does not make sense to you?

If you are thinking it's strange that Section 11.1 would have the 75% while Section 12.3 seems to indicate only a majority is needed to modify: To the layperson, yes, it seems strange. To the attorneys who write Declarations, I am betting it is not strange. I believe the attorneys use a kind of template for Declarations, customizing it to each HOA.

Post-2013, pursuant to Section 11.1 (first statement) and Section 12.3: "a vote in the majority by all owners" may modify, amend or terminate the covenants, except for the easement covenants.
BrianK13
(Indiana)

Posts:94


02/06/2020 12:01 PM  
Posted By AugustinD on 02/06/2020 11:14 AM
Section 11.1 is the section that has the statements about, post-2013, it takes 75% to amend. What part of Section 11.1's first statement, "Except as otherwise provided in this Declaration... " does not make sense to you?

If you are thinking it's strange that Section 11.1 would have the 75% while Section 12.3 seems to indicate only a majority is needed to modify: To the layperson, yes, it seems strange. To the attorneys who write Declarations, I am betting it is not strange. I believe the attorneys use a kind of template for Declarations, customizing it to each HOA.

Post-2013, pursuant to Section 11.1 (first statement) and Section 12.3: "a vote in the majority by all owners" may modify, amend or terminate the covenants, except for the easement covenants.

AugstinD, you are a gem. Thank you for your time here.

Your conclusion is stronger than the conclusion I would arrive at here. Given that Section 11.1 and 12.3 are in the *same* document, and 11.1 specifically states 75% for post-2013 (while it's 90% pre-2014), one might assume that the meaning of "or modified" in section 12.3 might be limited to "modifications that relax covenants" but would not apply to modifications which add new restrictions. At least then it is also fitting to the section header called "duration". So you can use this clause to "weaken/relax/remove" covenants/restrictions, but not make them more restrictive than before the modification. That's my conclusion from this.

Does my comment here modify your conclusion at all?
BrianK13
(Indiana)

Posts:94


02/06/2020 12:03 PM  
And for added info, here is the actual text from Declaration section 11.1:
===
"Adoption. Any proposed amendment to this Declaration must be approved by a vote of not less than ninety percent (901) in the aggregate of all Owners if the proposed amendment is considered and voted on on or before twenty (20) years from the date hereof, and not less than seventy-five percent (75%) if the proposed Amendment is considered and voted on after twenty (20) years..."
===
BrianK13
(Indiana)

Posts:94


02/06/2020 12:04 PM  
Please excuse the (901) -- that's supposed to be "90%", but was skewed by PDF to Word text converter.
AugustinD


Posts:2915


02/06/2020 12:20 PM  
Posted By BrianK13 on 02/06/2020 12:01 PM
11.1 specifically states 75% for post-2013 (while it's 90% pre-2014)
Why are you ignoring the very first sentence of 11.1, namely, "Except as otherwise provided in this Declaration, amendments to this Declaration shall be proposed and adopted in the following manner:"?

Did you give the buzillion or so attorneys you have consulted all the governing documents all at once?

I checked and find no legalese leger-de-main going on here. Here, amend = modify. The courts will do a plain reading. Why? Because to do anything else is not fair to the members, who agreed to abide by this contract.
BrianK13
(Indiana)

Posts:94


02/06/2020 12:38 PM  
Posted By AugustinD on 02/06/2020 12:20 PM

Why are you ignoring the very first sentence of 11.1, namely, "Except as otherwise provided in this Declaration, amendments to this Declaration shall be proposed and adopted in the following manner:"?

Did you give the buzillion or so attorneys you have consulted all the governing documents all at once?

When a document appears self-conflicting, wasn't sure how the courts would rule. I figured they'd give more weight to an entire section with many words, over another section with two words that imply a conflict. If your conclusion is correct, then what was the point of 11.1 specifying the 75% (if it's 100% ignored)?

So I was giving benefit to common sense here, which is that clearly the author didn't mean to fully nullify that part of section 11.1 with the insertion of these 2 words, "or modified". Also, the location of "or modified" is within the "Duration" clause, which is clearly about termination, not adding new amendments.

So I'd say this "or modified" only applies to modifications that are relaxing/terminating agreements, and never to make things more restrictive.

Also, only 4 lawyers looked at it, and yes, they all were given our 2-page argument along with both docs.

AugstinD, you'd given me ammunition enough to reform our argument to place much more emphasis upon what you are saying here, although I'm planning to propose are more limited interpretation of the "or modified" specification.

What I didn't highlight in our argument (but will now) is the preface of Section 11.1 "except as otherwise provided...".

Thank you very much for sharing your experienced perspective here.
AugustinD


Posts:2915


02/06/2020 1:02 PM  
Posted By BrianK13 on 02/06/2020 12:38 PM
When a document appears self-conflicting, wasn't sure how the courts would rule. I figured they'd give more weight to an entire section with many words, over another section with two words that imply a conflict.
In my opinion, Section 12.3 does not throw out all of Section 11.1. Section 12.3 only throws out Section 11.1's percentages. Assuming the document I found on the net matches your document, several sub-sections Section 11.1 still must be followed to modify or amend.

Posted By BrianK13 on 02/06/2020 12:38 PM

-- All competent attorneys will say my conclusion is correct only when a court of appeals says it is correct.

-- There is much more verbiage attached to the 75%, correct? The extra verbiage concerns the possibility that the Declarant is still in control. Your HOA's Declarant is long gone, correct?

-- As I noted earlier today, I believe these Declarations are written by attorneys who use the same template for all Declarations. The attorneys make small adjustments. Oversights do happen. (But when one thinks an attorney's oversight occurred, one had better thoroughly investigate. Attorneys do this for a living. They're not all more experienced than others and I are here. But many are. And I could give a damn if anyone thinks this is arrogant. More than one of us here has rightly corrected a HOA attorney.)

-- Regardless of what I wrote above, I believe a court's "plain reading" is still going to home in on that first statement in 11.1 . A lay reader of the Declaration, interested in this topic, would look for other places in the Declaration that say something different than what is in the body of Section 11.1. Indeed, Section 12.3 says something different.

Posted By BrianK13 on 02/06/2020 12:38 PM
What I didn't highlight in our argument (but will now) is the preface of Section 11.1 "except as otherwise provided..."
I agree you should highlight this. To those calling this insanity, I say that the developer wanted to give the owners more control some 20 years after the establishment of the HOA and after the developer was gone. I would also note that I have not found any HOA docs outside Indiana with phrases like the ones on which you have understandably been focused. It might be worth contacting some of the developers listed at the end of these Indiana HOA Declarations and asking them what law firm prepared their Declaration.


----
From IU's fight song: "Indiana, our Indiana... Indiana we're all for you." And certainly not tech-lame Iowa.
AugustinD


Posts:2915


02/06/2020 1:11 PM  
(Edited re-post of my last post)
Posted By BrianK13 on 02/06/2020 12:38 PM
When a document appears self-conflicting, wasn't sure how the courts would rule. I figured they'd give more weight to an entire section with many words, over another section with two words that imply a conflict.
-- In my opinion, Section 12.3 does not throw out all of Section 11.1. Section 12.3 only throws out Section 11.1's percentages. Assuming the document I found on the net matches your document, to modify or amend, several sub-sections of Section 11.1 still must be followed.

-- All competent attorneys will say my conclusion is correct only when a court of appeals says it is correct.

-- There is much more verbiage attached to the 75%, correct? The extra verbiage concerns the possibility that the Declarant is still in control. Your HOA's Declarant is long gone, correct?

-- As I noted earlier today, I believe these Declarations are written by attorneys who use the same template for all Declarations. The attorneys make small adjustments as needed to customize the Declaration to each HOA. Oversights do happen. (But when one thinks an attorney's oversight occurred, one had better dig hard into the document and the legal verbiage to be certain. Attorneys do this for a living. They're not all more experienced than others and I are here. But many are. And I could give a damn if anyone thinks this is arrogant. More than one of us here has rightly corrected a HOA attorney.)

-- Regardless of what I wrote above, I believe a court's "plain reading" is still going to home in on that first statement in Section 11.1 . A lay reader of the Declaration, interested in this topic, would look for other places in the Declaration that say something different than what is in the body of Section 11.1. Indeed, Section 12.3 says something different.
Posted By BrianK13 on 02/06/2020 12:38 PM
What I didn't highlight in our argument (but will now) is the preface of Section 11.1 "except as otherwise provided...".
I agree you should highlight this. I suppose the developer may have wanted to give the owners more control some 20 years after the establishment of the HOA and after the developer-declarant was gone. I do not find the latter surprising. I would also note that I have not found any HOA docs outside Indiana with phrases like the ones on which you have understandably been focused. It might be worth contacting some of the developers listed at the end of these Indiana HOA Declarations and asking them what law firm prepared their Declaration. Then call the law firm and see what they say their reasoning was; et cetera.


----
From IU's fight song: "Indiana, our Indiana... Indiana we're all for you." And certainly not tech-lame Iowa.

BrianK13
(Indiana)

Posts:94


02/06/2020 1:15 PM  
Posted By AugustinD on 02/06/2020 1:02 PM
....

AugustinD, thank you so much. I'm sending this revised argument back to the attorney who said she wouldn't sign off on this, to see if this simplified argument changes her mind.

I didn't realize that the preface "except as otherwise provided..." wasn't standard everywhere. I just confirmed what you are saying via spot check for a HOA in Florida, and it did not have this preface.

So, I guess we're probably in luck, and should be able to do terminations of individual restrictions with a mere 51% vote.

We can rest more at ease now, I think.

BrianK13
(Indiana)

Posts:94


02/06/2020 3:28 PM  
The majority of the commotion here started out with me not realizing how different can be the contract language of governing docs from state to state. I should have provided more information from the docs upfront, and then maybe the proposal wouldn't have been so ill-received. My bad here.

Sorry for the commotion/distress I caused to those who responded. I'll do better next time. We live and learn.

I'll post back to keep folks updated on progress here.
AugustinD


Posts:2915


02/06/2020 5:43 PM  
Posted By BrianK13 on 02/06/2020 1:15 PM
I'm sending this revised argument back to the attorney who said she wouldn't sign off on this, to see if this simplified argument changes her mind.
I do not think I would do this. I think it's a little rude, and I assume you are not paying her. I would check in with the attorneys whose preliminary answers you liked. The latter attorneys may already have incorporated the opening sentence of 11.1 into their thinking, at least a bit.
Posted By BrianK13 on 02/06/2020 1:15 PM
I didn't realize that the preface "except as otherwise provided..." wasn't standard everywhere. I just confirmed what you are saying via spot check for a HOA in Florida, and it did not have this preface.
Good work and great idea. My first blush impression (meaning I googled a bit) is that this phrase (and ones like it) is (are) unusual.

I appreciate your acknowledgment that the discussion would have been instantly better if the group had more of your Declaration available to it from the get-go. On the other hand, this is a tricky proposition. The forum's rules forbid posting of the actual names of any HOA. Conciseness and focus is encouraged. Figuring out what sections of a Declaration to post, or redacting the entire Declaration and then attaching it to a post, are both huge chores.

At this point, and despite my and I'd say others' testiness, I think you were right to keep questioning the word "modified" in Section 12.3. The inconsistency was bothering me too.

Not that this is all resolved. See what the attorneys say. (I would not expect a consensus.)


============
"I thought everyone in Indiana played basketball." -- Coach Dale
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Forums > Homeowner Association > HOA Discussions > Termination vs. Amendment - Take 3



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