Consent Voting – 10-3704
HB10-3704 Action by Written Consent
The BOD rewrote the CC&Rs and put them out to the community to vote yes or no by consent. The statute reads E. The action is effective on the date that the consent or consents are signed by the last member whose signature results in the requisite amount of voting power. To pass in our HOA requires 67% (124 votes. The vote count, disclosed at the board meeting this week was 82 No… 78 Yes… there for the CC&Rs failed. The board is refusing to acknowledge the NO vote and say the consent voting will be on going. We do not believe this a legal and violates the statute. What do you think? Thank you.
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The written consent process is legal, and that statute does allow members to change their vote until the final target is achieved. You are entitled to post signs in your community to urge the community to keep their no votes, and not to succumb to the pressure of the association to change their vote. You are also entitled under the law to call for informal meetings of the members to organize the opposition for this change until the association finally recognizes the truth and that their initiative failed.
Be strong and urge everyone to do the same.
JUST SAY NO.
Dennis
One more thing. There is an important point here to make. Written consent under ARS 10-3704 is essentially a petition that is walked around door to door until they get sufficient signatures. You do not get an opportunity to vote no on a petition you either sign the petition or don’t. If people have voted no, then what they have done is sent out a written ballot and simply called it a written consent. Written ballot without a meeting is addressed by ARS 10-3708. While signatures can be changed under written consent, the votes submitted under written ballot cannot be changed. While written consent can go on indefinitely, under written ballot the association must establish an end date by which all votes must be received to be counted.
If you were all sent a ballot and asked to vote yes or no than that is a written ballot without a meeting under ARS 10-3708 and if more than 33% of the votes of the community have been returned as “no” than the ballot initiative is dead and cannot be extended by the association.
The distinction between written consent and written ballot is very significant. The law allows amendments to the CC&R’s by vote or written consent. The section in the law relative to voting technically excludes the use of ARS 10 3708 for absentee ballots, so again technically the use of 3708 is illegal, but that has been ignored for years and most if not all CC&R’ amendments have been voted on by written ballot without a meeting. I’ve tried to clarify this statute for years to allow both written consent or written ballots under certain conditions and will continue to do so until we can finally get this law right and clear.
When the statutes are not clear the lawyers have a field day and tell associations they can do whatever they want.
Dennis