The
landowners at the September 19, 2009 meeting unanimously approved an initial
consultation with an attorney with cost not to exceed $200. Landowners
decided at the April 15, 2009 meeting to request a vote from all the
landowners to affirm their desire to keep the 2/3rds clause. The returned
mail indicated 15 votes for keeping the 2/3rds clause and 24 to eliminate
it. The rest of the parcel owners did not respond. The CC&Rs, Article V,
“Amendments,” stipulates the provisions of the CC&Rs may be amended upon a
majority vote of the owners entitled to vote; however, 43% of the landowners
elected not to vote. Subsequently, even though a majority of those
landowners who voted were in favor of amendment, a majority vote of all the
owners entitled to vote was not reached. Section 1356 of the Davis Stirling
Common Interest Development Act, California Civil Code, Division 2, Part 4,
Title 6 provides guidance for this situation and an attorney was to be
consulted to discuss this option:
“If
in order to amend a declaration, the declaration requires owners having more
than 50 percent of the votes in the association … to vote in favor of the
amendment, the association, or any owner of a separate interest, may
petition the superior court of the county in which the common interest
development is located for an order reducing the percentage of the
affirmative votes necessary for such an amendment. The petition shall
describe the effort that has been made to solicit approval of the
association members in the manner provided in the declaration, the number of
affirmative and negative votes actually received, the number or percentage
of affirmative votes required to effect the amendment in accordance with the
existing declaration, and other matters the petitioner considers relevant to
the court's determination.
Upon
filing the petition, the court shall set the matter for hearing and issue an
ex parte order setting forth the manner in which notice shall be given.
The
court may, but shall not be required to, grant the petition if it finds all
of the following:
(1)
The petitioner has given not less than 15 days written notice of the court
hearing to all members of the association, to any mortgagee of a mortgage or
beneficiary of a deed of trust who is entitled to notice under the terms of
the declaration, and to the city, county, or city and county in which the
common interest development is located that is entitled to notice under the
terms of the declaration.
(2)
Balloting on the proposed amendment was conducted in accordance with all
applicable provisions of the governing documents.
(3)
A reasonably diligent effort was made to permit all eligible members to vote
on the proposed amendment.
(4)
Owners having more than 50 percent of the votes, in a single class voting
structure, voted in favor of the amendment.
(5)
The amendment is reasonable.
(6)
Granting the petition is not improper for any reason stated in subdivision
(e).
If
the court makes the findings required by the above subdivision, any order
issued pursuant to this section may confirm the amendment as being validly
approved on the basis of the affirmative votes actually received during the
balloting period or the order may dispense with any requirement relating to
quorums or to the number or percentage of votes needed for approval of the
amendment that would otherwise exist under the governing documents.
An
amendment is not effective pursuant to this section until the court order
and amendment have been recorded in every county in which a portion of the
common interest development is located. The amendment may be acknowledged
by, and the court order and amendment may be recorded by, any person
designated in the declaration or by the association for that purpose, or if
no one is designated for that purpose, by the president of the association.
Upon recordation of the amendment and court order, the declaration, as
amended in accordance with this section, shall have the same force and
effect as if the amendment were adopted in compliance with every requirement
imposed by the governing documents.
Within a reasonable time after the amendment is recorded the association
shall mail a copy of the amendment to each member of the association,
together with a statement that the amendment has been recorded.”
