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jfantalis · Jan 23, 2014, 03:57 PM

Hi,

I am on my HOA board and we have a simple issue. The covenants are old and outdated. We want to update them. We know we need 2/3 of the residents to approve the changes. We also know most of our residents will not show up for a board meeting so we were planning on going door to door to collect absentee votes from the residents. We don't foresee an issue with getting approval in this way BUT we just realized the following in the covenants "Said requirement shall be satisfied by the recording of a certificate signed by the Secretary of the Association certifying that the required percentage of Lot Owners and First Mortgagees have given notarized consent to the amendment." Is this legal? Does this mean a notary must be present when each member votes? And thereby absentee voting can't take place?
Thanks

ScottGem · Jan 23, 2014, 04:44 PM

Yes it means that each vote must be notarized if they are not given in person.

smearcase · Jan 23, 2014, 08:43 PM

What's so hard about having a notary go with you, if it important to the HOA? The Board I was a member of could not get a legitimate vote ever because we couldn't get enough members to show up at meetings to constitute a quorum. If we had had an option like you have (maybe we did and didn't know it, but I doubt it) we would have hired a notary in a heartbeat.
I had a notary at my home for about two hours a few years ago, and it cost me $ 125 total.
In the state I was in at the time. on an HOA Board, covenants had to be signed off on by a judge. If you can do it that simply, you are fortunate. Are you certain that the clause in the covenants doesn't apply to the By-Laws? Does the Board have an attorney.
Anyhow, if it is needed, the Board should be able to cough up a few hundred bucks for a notary.

ScottGem · Jan 24, 2014, 05:16 AM

And I agree with smearcase. Hiring a notary for a couple of days shouldn't be too expensive.

AK lawyer · Jan 24, 2014, 11:00 AM

If it's a matter of going door-to-door, it might be cheaper for whoever is doing the leg-work to be commissioned as a notary. It's not that complicated in most states.

Also, here is a thought: The present covenants recite that "Said requirement shall be satisfied by ...". It follows that if the applicable statutes in your jurisdiction have an easier procedure (no mention of notarization, for example), the recitation doesn't require notarization, but only sets out one possible way to do it.

ballengerb1 · Jan 24, 2014, 11:12 AM

Your covenants can be amended, do you know what kind of vote is required to amend?

jfantalis · Jan 24, 2014, 11:37 AM

Thanks AK Lawyer. I will check
ballengerb1 - we need a 2/3 vote to amend it. We figure the board will need to go out around the neighbor a bunch of times to get enough people at home to get it done. Which is why bring a notary with us is not practical. We will be doing it whenever we have a little time. There are a lot of changes and we figure we will get into some long conversations with neighbors about it.

ScottGem · Jan 24, 2014, 11:49 AM

I would prepare a brochure explaining all the changes and the importance of voting on them. Explain that if people do not vote it will cost additional money (and an additional assessment). Then schedule a vote or a set of times to vote. Then, if they don't you can have another vote and spend money on it.

jfantalis · Jan 24, 2014, 12:02 PM

ScottGem - the board feels there is almost no chance to get everyone to show up at a vote. We need 2/3 of the people to vote yes so we need more than 2/3 to show. We are planning on creating a brochure like you suggested.

ScottGem · Jan 24, 2014, 12:39 PM

Do you have mostly owner occupied or absentee owner units? If its absentee you have a problem, but if its owner occupied and you provide a couple of different times for voting, I think you should get the votes. And if you don't then its on the owners if it cost them more for their indifference. The board did due diligence in publicizing the vote.

smearcase · Jan 24, 2014, 03:08 PM

I'll ask again jfantalis. Does the Assn. have an attorney? In my experience and research, there is a great variation in the laws governing HOA's. Our Assn. Board (in a previous state) held off hiring an attorney like many others do because the legal fees can bankrupt an association very easily. But if you end up with a questionable vote, and if your changes are controversial, and you get a legal a challenge from just one homeowner, the attorney fees will be even greater. We ended up spending $ 25,000 on an attorney but our issues were finally resolved in court.
If we knew the actual changes being proposed, the state involved and the wording of the actual governing documents, we would be in a better position to give advice.
As I understand it you want to get each homeowner to give you a signed vote at their door or in their house. Is there any limit to how many votes can be absentee votes in your covenants or governed by your state's laws? Talk to some notaries. You might be surprised and find one or two who would be very happy to work on your schedules for a very reasonable fee. I reviewed the requirements for becoming a notary in PA and it looks like it can become somewhat involved and 4 to 6 weeks to process. But once again state laws vary on most everything.
Become a Notary

smearcase · Jan 24, 2014, 03:55 PM

I should clarify one statement in my first response which was "In the state I was in at the time. on an HOA Board, covenants had to be signed off on by a judge"
That is a true statement and I still remember the judge's name even though it was about 14 years ago.
But, this was during the process of the changeover from the developer's control and his covenants to the HOA which had been in existence (duly recorded with the Sec. of State), but never a Board of Directors established, etc. The developer was anxious to get rid of managing the system, and we were quite sure that his goal was to get rid of it before the roads that he had built crumbled any further than they already had, in a state where you own your own roads unless the state takes them over, which doesn't happen very often. There are no county roads in that state. It's simply yours or the state's.
We (the Board) re-wrote the covenants and negotiated in an arbitration all day meeting, making changes back and forth, and finally came to agreement with the developer.
There was formal hearing and the judge signed the covenants.
I do not know the process for changes to those covenants. Our were brand new, and every member had had a chance to review them, except for some changes made at arbitration.
And as of the time I moved from that state, no changes to covenants or By-Laws had been requested or considered.
We were very lucky- the state took over the roads as we took advantage of a very narrow window to get it accomplished during a major election year.
We were facing the prospect of trying to collect approx. $ 3,000 from each owner, to do major repairs to a couple of miles of roads.