Quote:
Posted By KayK3 on 12/13/2019 6:28 AM
The voting took place at the annual meeting in person and by proxy. Proper notice was given per Florida Statute and our CC&Rs. People could vote for A, B, C, and D. It was not pick and choose. Members who voted for A continued to vote for B. If it were to have gone on to vote for C and D a few people who voted for B would have dropped off and a few people who had not yet voted would have been able to vote for C or D. So yes, it would be possible to have passed C or D with more votes.
KayK3, given the above, I agree with you. I think how the vote was performed and the new amendment itself could be successfully challenged in a court of law.
First, if push came to shove and this landed in court, I think a competent judge would conclude that, when the CC&Rs state something like, 'The CC&Rs may be amended by a vote of 67% [or whatever KayK3's Declaration requires] of the membership," this means a single straight up or down vote on one issue, and any other issues on the ballot need to be unrelated.'
Second, I would get as many members who feel as you do together to sign a 'demand letter lite' and send it to the Board. It could read something like the following:
Dear Board,
Pursuant to Declaration Section __, the Declaration may be amended by a vote of ____ of the membership. In our opinion, among other things this means that votes to amend must be conducted in a manner that legitimately reflects the will of the membership.
On December __, 2019, the Association conducted a vote to amend the Declaration. Members were allowed to vote not once but instead repeatedly on the same issue. Each new vote tally reflected the membership's position on the percentage of wood allowed in exterior siding. Significantly, voting stopped after the second of four possible choices. If voting had continued, we believe the third and fourth choices may also have ostensibly achieved the vote required to become amendments. They may even have received a larger percentage of support than the second choice. Yet of course, implementing any two or more of the four choices would be logically inconsistent. With the greatest respect for your hard work as volunteers, we feel that these problems translate to the amendment being unlawful. Would the Board please discard the outcome of this vote, as it cannot reflect the will of the membership on this important issue? Also would the Board please plan to perform a new vote, using, for example, either the approach we describe below, or some other approach that will truly reflect the will of the membership?
Please let us know your decision by the end of December.
Thank you,
Jane Doe
Lot #____
Gator HOA
John Smith
Lot #____
Gator HOA
Liz Jones
Lot #___
Gator HOA
[And so on]
Third, how should this important issue have been decided? One approach would be to vote on this issue in two stages:
Stage 1, formal survey: at a properly noticed meeting of members, ask the membership to vote on what they recommend the board place on a ballot for the percentage of wood acceptable in exterior siding. The ballot should give members the four choices; state that members should check off no more than two choices; and indicate that ballots with three or more choices selected will be discarded. A properly qualified elections inspector should report how many votes each choice received.
Stage 2, vote to amend: Put the top two choices from Stage 1 on a new ballot. Properly notice all members. The ballot instructions should state that members are to vote for exactly one of three choices: x % of wood, y % of wood, neither. Inform voters that ballots with more than one choice will be discarded. If neither x nor y get the required vote, there is no amendment.