Extended Balloting
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EXTENDED BALLOTING

An unpublished case, Bel Air Ridge HOA v. Rosenberg, supports the proposition that boards can extend the balloting period as-needed to ensure sufficient numbers of voters cast ballots related to special assessments and CC&R restatements.

CC&R Amendments. In addition to statutory approval requirements, older CC&Rs frequently require approval by 75% of the membership to amend them. Even worse, some also require approval by 75% of the mortgage holders. That was what the Bel Air Ridge HOA faced. Their documents were recorded in 1976 and needed restating. Because of apathy, the board had to extend the balloting deadline five times while pleading with members to vote.

Petition Filed. When balloting was finally closed, only 65% of the membership had voted. Although they clearly missed the 75% threshold, 53% of the membership approved the restated CC&Rs.it was enough for the board to petition the court for approval.

Extended Balloting. Three homeowners filed papers with the court opposing the petition. The court did not find their arguments persuasive and approved the CC&Rs. The opponents appealed and challenged the repeated extension of the voting deadline. The court of appeals reviewed the issue and concluded the extensions did not violate the voting process since the Davis-Stirling Act contained no restrictions on extensions and prevailed over anything to the contrary in the bylaws.

Lender Approval. The challengers also attacked the lender approval process. The HOA had sent a letter to them stating: "If you, as a lender, do not complete and return your ballot in a timely manner indicating your disapproval of all or part of the document, it will be deemed that you have voted in favor of approving the entire Restated CC&Rs." The court decided the HOA had made reasonably diligent efforts to seek lender approval and found no violation.

Reasonable Restrictions. The opponents also argued the new CC&Rs contained unreasonable restrictions. They did not explain why they thought the restrictions were unreasonable but, instead, argued the HOA failed to establish they were reasonable. The court disagreed and ruled for the association, thereby approving the new CC&Rs. (See Bel Air Ridge HOA v. Rosenberg.)

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