Are HOA CC&s’s Governing Documents?
Hello Dennis-
My HOA voted this week in regards to HB2298. Unfortunately, the vote resulted in leaving the HOA with full authority to control our public streets… I have been fighting with my HOA on this across several fronts ever since this legislation passed and was signed by the gov.
There are 445 homeowners in my community. There was a total of 120 homeowners who voted. Of those 120 total votes only 20 homeowners voted to give the city control of our public streets.
In our CC&Rs which are 36yrs old and are still the builder developer serving set of documents it states:
Any action by the Association which must have the approval of the Association membership before being undertaken shall require (i) the vote of fifty-one percent (51%) of the votes of
Members.
When I brought up the board that the 120 votes do not meet the 51% quorum needed, I was told…
“The recent vote regarding enforcement of parking on public streets was not a governing document amendment, but rather a vote to comply with Arizona state law, specifically A.R.S. § 33-1818(B)(1).”
That statute allows an HOA to enforce parking rules on public roadways only if a majority of a quorum of members votes in favor. Importantly, it allows quorum to be defined by the Association’s governing documents. In our case, Article 3, Section 5 of the Bylaws states that quorum for a membership vote is 10% of the community.
My Question-Are:
1.) Is it common to have two different Quorums? (One In the Bylaws that is different from the one in the CC&Rs)
2.) Are the CC&R’s a Governing doc? – the board said it was not, if it is a governing doc wouldn’t 51% be the quorum?
3.) Was it that a Special Meeting was called to initiate the vote, and that set the Bylaws Quorum of 10% in play rather than the Quorum noted in our CC&Rs of 51%?
The HOA ignored my request prior to the vote to initiate a homeowner debate on those in favor and those who oppose the legislation so an educated vote can take place.
The HOA publicly stated they wanted to maintain authority of the public streets using scare tactics and hypothesis of Large Trucks, Campers, RVs, and trailers flooding the parking on our streets.
I would appreciate any advice or guidance to how I can combat this further
Thank you in advance
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Ed,
The CC&Rs always dictate over any provision in the bylaws. The real question is what exactly the provision of the CC&Rs applies to. Without seeing the exact language of the CC&Rs, I cannot intelligently comment on your question. It could apply to changes to the CC&Rs, while the bylaws provision applies to all normal meetings of the members.
If the provision of the CC&Rs actually applies to any action to be taken by the members including the election of board members, the association has no authority to change that provision in the Bylaws without first amending the CC&Rs.
While the statute dictating this vote allowed for a simple majority of the members voting to decide the issue, the required quorum first had to be achieved. If the quorum was not achieved, the vote outcome is null and void, and the board has until June 30th to recall the meeting and get the required quorum or their right to regulate streets is removed by law.
You can e-mail me an electronic copy of your CC&Rs and I’ll look them over relative to the quorum requirement.
Dennis
Dennis- Thank you so much.. you have been a tremendous help.. Later today I will send you a copy.. I can’t tell you how much I appreciate all of. your help in this matter…
Dennis- Thank You! You have been a tremendous help, Later today I will send you a copy..
Thank You
What was the outcome of this? I had a similar question regarding my HOA with this same topic.