Our Home Owners Association (HOA), an over 55 community, is in a prolonged battle over changing the CC&Rs. I won’t take the time to list all the changes being proposed, because I don’t think they are the issue. Instead, I’ll focus on the process. We have a current requirement to approve changes by a 75% majority, based on eligible voters. That threshold has been in place since 1985 and the CC&Rs have been updated 2 times.
The 1st hint of trouble came 2 years ago. A change was proposed to allow motorcycles to operate on streets, which we own, inside our association boundaries. Just before voting, two letters, one from a motorcycle owner and one from an attorney our HOA Board retained, were circulated. The cycle owner said he’d sue us if he was denied the use of his vehicle and the lawyer said our restriction could be challenged in court and would be expensive to defend. In spite of the veiled threats and warnings, the change was rejected by a wide margin. After the vote, our Board said they were not going to enforce the restriction. Interestingly, before the change was proposed, the person with the motorcycle had been quietly coming and going for years, with no complaints. Had nothing been done, everyone would have been fine, since the restriction is intended to keep the noise level down and the motorcycle in question is much quieter than most vehicles using the association streets. But, I digress. My point is that the Board chose to ignore the result of the vote.
The next attempt to change the CC&Rs came last year, when a lawyer was brought in to rewrite them and bring them up to current State requirements. This was done at a cost of $30,000. It was also done with questionable justification. Our current rules met State requirements when they were written and all legislation since allows existing CC&Rs to remain in place. As long as they don’t violate individual rights or specific new legislative requirements, old CC&Rs are fine. If they are in conflict, Federal, State and municipal law takes precedence. Since we have no legal conflicts, the only reason to change the CC&Rs is to change how our Association operates. The rewrite submitted last year did not meet the 75% threshold. After the vote, the Board contended the threshold was too high and sued the Homeowners, claiming the rewritten CC&Rs should replace the previous version. After months of maneuvering, the court rejected the suit and the Board attempt to circumvent the voter threshold was denied.
After the setback, the Board hired a new attorney and instructed him to start with the rejected version of the CC&Rs and amend them to, among other things, get rid of Board Term Limits and reduce the threshold for changing CC&Rs to 60%. In the meantime, the Board ignored the current Term Limits and brought back a Board member, who had “termed” out, to fill a vacant spot.
After rewriting the CC&Rs based on the version that had been rejected and sending around a 2 page summary of what we would be voting on, that was based on changes to the rejected CC&R version that did not show all the changes to the currently active CC&Rs, a vote was scheduled for September 13th, 2012. Requests to clarify what we will be voting on, by listing all changes to the current CC&Rs were ignored.
That brings me to what has happened most recently. Here is a letter I have emailed to other Association Members. Since we only have monthly meetings and the agenda is controlled by the Board and another meeting will not take place until the voting is complete on the 13th, I am using a Home Owners email account, set up for those who want to discuss issues.
I find the recent notice we received on Thursday September 6th, about sending in our ballots a week before the September 13th due date, both unusual and disturbing. The reason given; that it looks like we will not have enough members voting to reach a quorum, is suspect to me. Unless the Board can see into the future, they have no way of knowing how many members will turn in their ballots, by the 13th.
The disturbing part of this is the other reason they are giving for early voting: being able to tally the votes before the evening of the 13th, to avoid working late on the count. The votes are, according to current CC&Rs, to be counted at 6:00PM on the last day of voting. No one should be opening ballots before then. So:
- If someone is opening the ballots and counting them before the 13th, they would already know how the results are trending.
- If it looks like the outcome isn’t what some Board members want, they could cancel the vote and avoid a rejection of the changes.
- Canceling the vote, for lack of a quorum, is what they are implying they will do, although they can’t know if they have a quorum until the deadline on the 13th.
The other concern I have is, this request to turn in ballots ahead of the established deadline, is being done on the advice of the attorney. I lived in well run Associations, in Orange County, CA, for more than 25 years, before moving to here. In that time, a lawyer was hired once, for a short time, to get rid of a President who was getting kickbacks from contractors and tried to change the election rules to remain in office, over growing member dissatisfaction.
Something doesn’t feel right about this prolonged effort to change the CC&Rs, how it’s being done, the unusual notice about having to submit ballots ahead of the due date, the statement that the vote might be canceled for lack of a quorum (before anyone could possibly know how many ballots will be turned in) and the escalating costs due to involving an attorney, on what should be a routine matter.
So that, in a rather large nutshell, is where I am today. Sensing that my voting rights are being co-opted, I am making a noise and pushing back. There just doesn’t seem to be an end to what some people will try, to force their agenda on others. Motives aside, when voices are stifled and votes are ignored, we have to fight for our right to be heard, regardless of where it’s happening.