POA Covenant changes

[Kiwi]

Our Covenant states to make Covenant changes once a quorum is met a "a 2/3rd majority vote of all eligible members to pass" a vote was taken at a POA meeting with some on the understanding this vote was to acknowledge the new changes to go out to the community for a formal vote. The board President instead took this vote as an acceptable pass and had it recorded which the board is now trying to enforce. Several have questioned the validity of this new document as not all members were aware of the change nor the opportunity to vote.

There are several line items in this document, should not each line item be voted on separately and not a blanket vote on the entirety of the whole document?

[Guest Puzzling]

Your questions is rather complicated and needs lots of investigation,  for  HOA  s I always refer to the Homeowners protection bureau www.hopb.co to have a look at the Laws that supersede RONR and other help you can get.

I wonder that you say "

16 minutes ago, Kiwi said:

not all members were aware of the change nor the opportunity to vote.

Was there no notification of the changes made? 

RONR prescribes that for bylaws changes notification is necessary,  I guess that would also apply to the covenant.

20 minutes ago, Kiwi said:

"a 2/3rd majority vote of all eligible members to pass"

I think this means 2/3rd supermajority of all members , not a 2/3 vote of the present and voting members, I cannot imagine that this very high threshold was reached.

 

24 minutes ago, Kiwi said:

There are several line items in this document, should not each line item be voted on separately and not a blanket vote on the entirety of the whole document?

If no member present asks for a line by line debate and vote it is okay to vote only on the entirety. 

This is just a first reply there will be others have a look at what RONR says about bylaw changes they are applicable here.

 

[Josh Martin]

3 hours ago, Kiwi said:

Our Covenant states to make Covenant changes once a quorum is met a "a 2/3rd majority vote of all eligible members to pass" a vote was taken at a POA meeting with some on the understanding this vote was to acknowledge the new changes to go out to the community for a formal vote. The board President instead took this vote as an acceptable pass and had it recorded which the board is now trying to enforce. Several have questioned the validity of this new document as not all members were aware of the change nor the opportunity to vote.

There are several line items in this document, should not each line item be voted on separately and not a blanket vote on the entirety of the whole document?

If the document was presented as a complete revision to the covenant, then a single vote should be taken on the document in its entirety. It would not be proper or advisable to take a "line by line vote" since governing documents are supposed to be a cohesive whole, and voting on a revision in this manner is likely to leave a garbled mess. The assembly could, however, consider the document by paragraph or seriatim, in which case each paragraph/section/article is opened to debate and amendment separately, however, a single vote is still taken on the document as a whole in the end.

In the alternative, if a series of individual amendments to the covenant was proposed, then those changes should indeed generally be voted on individually. A series of changes could be proposed to be adopted by a single resolution, however, if they are on different subjects, a single member could demand that one or more of the changes be considered separately. If they were on related subjects but still could each stand alone as an independent original, then a majority vote would be required to divide the changes. It is also possible that there is a case where a series of "conforming amendments" is necessary to implement an amendment, in which case the series could not be divided. An example of this might be if the title of an officer position is changed, and that title is referred to in several places throughout a document.

To the extent there were any errors in this regard, it does not seem to me that these errors would be sufficient to invalidate the vote after the fact. Generally, a Point of Order must be raised at the time in order to be timely.

Of greater concern to me is the statement that "not all members were aware of the change nor the opportunity to vote." I would like to hear more about exactly what is meant by this, as if it was the case that the covenant requires previous notice for its amendment and sufficient notice was not given, or if members were prevented from exercising their right to vote, those would be much graver violations of the rules and may be sufficient reason to raise a Point of Order regarding the validity of this document at a future meeting of the association.

There also seems to be a dispute over whether the vote was to be taken by a vote of members present at a meeting of the association or whether a vote was to be taken by mail or some other means in which all members could vote. It would be necessary to refer to your documents to answer this question, but if a vote of all members was in fact required and this was not done, that would also be grounds for a Point of Order at a future meeting of the association.

2 hours ago, Guest Puzzling said:

If no member present asks for a line by line debate and vote it is okay to vote only on the entirety. 

Depending on the specific manner in which these amendments were presented, it may well have been the proper procedure to vote only on the entirety of the document regardless of what members requested.

Edited February 7, 2021 at 06:22 PM by Josh Martin

[Richard Brown]

I had/have the same concerns that Mr. Martin raised and I am glad he raised them.  I did not have the time earlier when reading the original post to respond as fully as he did.

I do have a follow up question, however, about this statement:

1 hour ago, Josh Martin said:

There also seems to be a dispute over whether the vote was to be taken by a vote of members present at a meeting of the association or whether a vote was to be taken by mail or some other means in which all members could vote. It would be necessary to refer to your documents to answer this question, but if a vote of all members was in fact required and this was not done, that would also be grounds for a Point of Order at a future meeting of the association.

If the chair mis-interpreted the rules and declared that the covenants were adopted based on a two thirds vote of the members present, would that constitute a continuing breach or would it require a timely point of order?  RONR is quite clear that the declaration of the vote result by the chair stands unless a timely point of order is raised.  The question here becomes, what if the bylaws require a two thirds vote of the  membership but the chair interpreted it to mean a two thirds vote of the members present and declared the motion adopted and no one raised a point of order at the time?

I am assuming that if the bylaws clearly require that the entire membership be permitted to vote (such as by mail) but the vote was instead taken at a meeting at which absent members were not permitted to vote, that would constitute a continuing breach and would be subject to a point of order raised at a later meeting.  But if the bylaws simply require "a 2/3rd majority vote of all eligible members to pass" and the chair interpreted that as being two thirds vote of the members present (or of the members voting) and erroneously declared the motion adopted, would that constitute a continuing breach?  Sections 45:9 and 23:5-7 seem to be the controlling provisions.

[Josh Martin]

1 hour ago, Richard Brown said:

If the chair mis-interpreted the rules and declared that the covenants were adopted based on a two thirds vote of the members present, would that constitute a continuing breach or would it require a timely point of order?  RONR is quite clear that the declaration of the vote result by the chair stands unless a timely point of order is raised.  The question here becomes, what if the bylaws require a two thirds vote of the  membership but the chair interpreted it to mean a two thirds vote of the members present and declared the motion adopted and no one raised a point of order at the time?

What I meant by that statement was if, for instance, the bylaws require a vote by mail, and a vote was instead taken at a meeting, it seems to me that would clearly be a continuing breach.

As to this question, if the bylaws in fact require a vote of 2/3 of the entire membership, and the chair erroneously declared the motion to be adopted based upon a belief that only 2/3 of the members present (or of the members present and voting) was required, this would be a continuing breach if less than 2/3 of the membership was present, but it would not be a continuing breach if at least 2/3 of the membership was present. A rule requiring a vote of 2/3 of the entire membership for adoption of a motion protects absentees if less than 2/3 of the entire membership is present, but it provides no such protection if at least 2/3 of the entire membership is present.

Edited February 7, 2021 at 09:46 PM by Josh Martin