Most older CC&Rs have very high approval requirements (from 60% to 75%) that make it almost impossible to amend or restate the CC&Rs. The legislature recognized the problem and enacted Civil Code §1356 to alleviate the problem.

Good Faith Effort. If an association makes a good faith effort to obtain membership approval and the votes fall short of the super-majority, the association may petition the court to reduce the required percentage. Blue Lagoon v. Mitchell. The petition must contain the following:

1. The reasons for the amendment.

2. The number of votes required to amend.

3. The number of affirmative and negative votes actually received.

4. The association's effort to solicit membership approval.

5. A copy of the governing documents, text of the amendment, and the notice and solicitation materials used.

Time Frame. The petition is given priority by the courts. The process generally takes from 30 to 90 days to prepare and file the petition and have the matter heard.

Court Approval. The court may, but is not required to, grant the petition if it finds all of the following:

1. The membership was given at least 15 days written notice of the court hearing.

2. Balloting on the proposed amendment was conducted in accordance with the governing documents.

3. A reasonably diligent effort was made to permit all eligible members to vote on the proposed amendment.

4. More than 50% of the membership voted in favor of the amendment. Peak Investments v. South Peak HOA.

5. The amendment is reasonable.

6. Granting the petition is not improper for any reason stated in subdivision (e) of the statute.

Secret Balloting. Although not mentioned in the six points listed above, the election on the amendment must follow the provisions for secret balloting described in Civil Code §1363.03 (appointment of an Inspector, secret balloting, public counting of ballots, etc.). Otherwise, the election itself may be deemed invalid before the court ever reaches the issue of reducing the quorum for approving the amendment/restatement.

Reasonableness. The standard for reasonableness for CC&R amendments is that they not be arbitrary or capricious; that they be rationally related to the protection, preservation or proper operation of the property and the purposes of the association as set forth in its governing instruments; and that they be fair and nondiscriminatory. Fourth La Costa v. Seith.

An amendment requiring rental of units to be at least 30 days is reasonable. Mission Shores v. Pheil.

ASSISTANCE: To amend or restate governing documents, see amending documents. For a quote contact us.