Amendment Procedure. Generally speaking, an attempt to amend a recorded covenant that does not conform to the established amendment procedure is invalid. (Gladstone v. Gregory (1979) 596 P2d 491.) Amendment procedures are found in the CC&Rs.
Approval Requirement. The approval requirements for amending CC&Rs are found in the CC&Rs (usually toward the end of the document). As provided for in Civil Code §4270, CC&R amendments and restatements are effective upon completion of the following:
(1) The amendment has been approved by the percentage of members required by the declaration and any other person whose approval is required by the declaration.
(2) That fact has been certified in a writing executed and acknowledged by the officer designated in the declaration or by the association for that purpose, or if no one is designated, by the president of the association.
(3) The amendment has been recorded in each county in which a portion of the common interest development is located [which provides constructive notice of the amendment].
If a set of CC&Rs does not have an amendment provision, the Davis-Stirling Act provides a default method for approval.
Properly Approved. Voting must be done by secret ballot (Civ. Code §5100(a).) in accordance with written election rules. (Civ. Code §5105(a).) Associations must follow owner approval requirements. Otherwise, any "approval" of the amendment or restatement is voidable. The act of recording the amendment does not, by itself, make the amendment valid. (Taormina Theosophical Community v. Silver.)
Apathy. Because the approval requirements in older documents can be unreasonably high and apathy among voters equally high, obtaining the necessary number of ballots in a 30-day balloting period is often impossible. The board may extend balloting one or more times to solicit ballots in an attempt to maximize participation. The Inspector or Elections can also extend the balloting period. (Civ. Code §5110(a).) For more information, see Extended Balloting.
Court Approval. In the event an association cannot achieve the super-majority required by their CC&Rs, they have the opportunity for court approval of the amendment-restatement.
Board-Approved Amendments. In addition to amendments approved by the membership, there are three categories of amendments that can be made solely with board approval. They are:
Entirely by Mail. Unless an association's governing documents provide otherwise, voting may done entirely through the mail, with no voting at a meeting. However, counting the ballots is still done at an open meeting so members can observe the counting process.
Retroactive Application. Once a CC&R amendment or restatement is recorded, it applies to all members regardless of the date they purchased their unit/lot. The courts addressed this clearly in the Terifaj case:
The questions we confront in this case are whether use restrictions added to a declaration through an amendment and recorded after a homeowner has purchased an individual unit bind such an owner, and whether the rule of Nahrstedt—that restrictions in a development's declaration are presumed to *79 be reasonable and are enforceable unless they are arbitrary, impose an undue burden on the property or violate fundamental public policy (Nahrstedt, supra, 8 Cal.4th 361, 386, 33 Cal.Rptr.2d 63, 878 P.2d 1275)—applies to subsequently enacted restrictions. We are also called upon to decide whether the trial court abused its discretion in awarding attorney fees to the homeowners association.
We conclude that under the plain and unambiguous language of sections 1354, subdivision (a), and 1355, subdivision (b), use restrictions in amended declarations recorded subsequent to a challenging homeowner's purchase of a condominium unit are binding on that homeowner, are enforceable via injunctive relief under section 1354, subdivision (a), and are entitled to the same judicial deference given use restrictions recorded prior to the homeowner's purchase. (Villa De Las Palmas Homeowners Ass'n v. Terifaj (2004) 33 Cal.4th 73, 78–79.)
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