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February 22, 2007
How To Get Document Amendments Approved When Owner Apathy Reigns
In California, there is a way to try and get updated documents (specifically the Declaration of Covenants, Conditions and Restrictions - i.e. - CC&Rs) approved if the members do not come through. If the CC&Rs require a percentage of approval that is higher than 51% (many of the older documents require 2/3 or 75% approval) but the board is not able to get that kind of return on the ballots, the Board may file a court petition asking for court approval of the docs. There must be at least 51% approval to ask the court to approve the amendments.
Once the petition is filed, the owners need to be notified and they can respond to the court proceedings and appear if they want to. It can be costly. Sometimes the form of notice required is costly. The court could require that all members be notified of the proceeding by personal service or certified mail instead of first class mail. Some judges are more lenient. As a matter of proof of a good faith attempt to get the members to vote, the Association would have to present to the judge all efforts to get members to vote and convince the judge that it made a good effort, and that apathy is the reason why the updated documents did not pass.
The costs could could reach or exceed $4000-$5000 (even if there is no material resistence) to $50,000 or more (if opposition is vehemently waged). While the Association often can ask for reimbursement of attorneys fees for actions related to the documents, in this case, at least in California, the Association cannot recover the attorney fees or costs from anyone since the petition is seen as a non-adversarial process.
Civil Code Section 1356.
It is nice to know that this process is available, but the better plan is to do the footwork needed to get owners to vote, even if that means block assignments, a major campaign, going door-to-door, or making phone calls to get owners to vote. Many Boards do not believe they can ever get enough members to vote to approve updated documents when a high percentage of approving votes is needed, but most will exceed all expectations, if they get enough people involved and just give it a serious effort.
Posted by Beth Grimm at February 22, 2007 5:53 PM