Amending Governing Documents

Amending your condominium or homeowners association governing documents is no easy chore. It can be a long and costly process, and even then, you may not receive enough votes to approve the amendments. The process of amending goes like this:

1. Identify the reasons for amendments 2. Determine any statutory requirements 3. Determine voting requirements 4. Decide on the method of voting 5. Solicit owner feedback on proposed amendments 6. Conduct the vote 7. Prepare the amendments for recording 8. Sign and notarize 9. Secure any governmental approvals 10. Record the amendments with the county recorder

Here are some things to consider before embarking on an amendment project:

Identify the Reasons for the Amendments

There are many reasons to amend governing documents. Common reasons include:

1. Legislative changes 2. Ambiguous provisions 3. Outdated provisions 4. Community demographic has changed 5. Removal of “declarant” language 6. Adding or removing restrictions

It’s critical that the reasons for each amendment are conveyed to the owners. After all, most amendments require owner approval. Making a convincing case to the ownership will result in higher voter turnout and more “yes” votes.

Find out What’s Required

Most CC&R amendments require a vote of between 65%-75% of the entire ownership. Bylaw amendments typically require a majority vote of the owners. However, sometimes state law will require different approval requirements. For example, in Oregon condominiums the approval of 75% of all owners is required for any amendment related to pet restrictions or the rental or leasing of units. (ORS 100.410(4)). In Washington, a homeowners association may amend its governing documents to remove discriminatory provisions by a majority vote of just the board of directors (RCW 64.38.028)

Method of Voting

Most associations will find it impossible to approve a governing document amendment at a physical meeting of the owners. For a CC&R amendment requiring 75% approval, the chances of that many owners attending a physical meeting in person or proxy is slim. The most common method is to conduct the vote by written ballot. Better yet, some communities may conduct the vote via online ballot. This often generates the most voter turn out. For an example of an online ballot, click here.

Finalize and Record

Once the required number of votes have been received, the amendment must be prepared for signature and recording. In some cases, approval by the state or a governmental authority must be received and reflected on the amendment. The amendment should contain references to the original documents which are subject to the amendments, and must be signed and notarized. The amendments do not become effective until recorded with the county recorders office.

To learn more, check out our document amendment timeline.

Fractions and Votes Under Robert's Rules

Condominium and homeowner association documents contain many different voting requirements.  For example, the required number of votes to elect a director is usually different than the number of votes required to adopt an annual budget.

The math involved in determining voting requirements doesn’t usually have whole round numbers. Suppose a planned community has 173 lots.  The Bylaws require a quorum of 20% of the owners at the annual meeting.  The quorum requirement, then, is 34.6. But does 34.6 mean that 34 or 35 owners must be present in person or proxy?

The use of the term “majority” is often misunderstood.  Under Robert’s Rules, a majority means “more than half.”  (Occasionally, I hear people say that a majority is 50% plus 1.  This is an incorrect interpretation and results in a wrong voting threshold.) Let’s assume quorum is achieved and an issue arises requiring a majority vote. Blank ballots or abstentions aren’t counted. With that in mind:

If 19 votes are cast, a majority (more than 9.5) is 10

If 20 votes are cast, a majority (more than 10) is 11

If 21 votes are cast, a majority (more than 10.5) is 11

The term “majority” must be read in context. And with slightly different verbiage, “majority” may mean very different things.  Let’s assume there are 150 lot owners.  The Bylaws contain a 10% quorum requirement.  Out of the 150 lot owners, only 30 show up and only 25 of the 30 actually vote on the issue.  If the Bylaws simply require “a majority vote”, then only 13 votes are required.  But what if the Bylaws require “a majority of the members present”? In that case, 16 votes are required.  Here are some other examples commonly found in community association Bylaws:

“a majority of the entire membership” (76 votes required)

“2/3 of the members present” (20 votes required)

“2/3 of the entire membership” (100 votes required)

Many actions at owner meetings require a 2/3 vote.  Suppose the governing documents require the approval of a motion by a 2/3 vote of the members present in person or by proxy.  Under Robert’s Rules, you don’t round down:

If 30 votes are cast, a 2/3 vote is 20

If 31 votes are cast, a 2/3 vote is 21

If 32 votes are cast, a 2/3 vote is 22

If 33 votes are cast, a 2/3 vote is 22

In community associations where voting rights are tied to the square footage of a dwelling, matters are even more complicated. In short, read your documents carefully and do the math before the meeting!

Cumulative Voting

Some community association bylaws or articles of incorporation authorize the use of cumulative voting for the election of directors.  Under this type of voting, owners may cast multiple votes for a single candidate. Under standard voting procedures, each owner is allocated one vote per lot or unit.  So, if there are 3 positions open on the board of directors, with 5 candidates running, the owner is entitled to cast votes for 3 of the 5 candidates.  The ballot would look something like this:

Jane Anderson	1
Jack Smith
Henry Talmage
Cindy Almberg	1
Kevin Harker	1

But under a cumulative voting arrangement, I may allocate all three of my votes to a single candidate, like this:

Jane Anderson
Jack Smith
Henry Talmage
Cindy Almberg
Kevin Harker	3

Oregon law authorizes cumulative voting only if provided for in the articles of incorporation or bylaws:

If the articles or bylaws provide for cumulative voting by members, members may so vote, by multiplying the number of votes the members are entitled to cast by the number of directors for whom they are entitled to vote, and cast the product for a single candidate or distribute the product among two or more candidates. (ORS 65.247).

The Washington Nonprofit Corporation Act contains a similar requirement:

The articles of incorporation or the bylaws may provide that in all elections for directors every member entitled to vote shall have the right to cumulate his [or her] vote and to give one candidate a number of votes equal to his [or her] vote multiplied by the number of directors to be elected, or by distributing such votes on the same principle among any number of such candidates. (RCW 24.03.085(4)).

Using cumulative voting, a small group of owners who coordinate their voting efforts may be able to secure the election of a candidate as a minority member of the board.  Robert's Rules of Order, however, advises against the use of cumulative voting since

it violates the fundamental principle of parliamentary law that each member is entitled to one and only one vote on a question. (RRO, 11th Ed., Section 46).

"Electing" Board Members

Each year community associations in Oregon and Washington hold annual meetings of the membership.  The primary purpose of the annual meeting is to elect individuals to the board of directors. Let's suppose that an association has a board of directors comprised of 7 individual members. At the annual meeting, 3 of the director positions will be open (the term of office for the remaining 4 directors is the following year). Now, let's suppose that only 3 individuals have been nominated prior to the annual meeting. In other words, there are 3 spots open and only 3 people have agreed to run for the positions. Is it necessary to go through the steps of "electing" these individuals? The short answer is, yes.  Here's why.

Most bylaws state that board members must be "elected."  Robert's Rules states:

If the bylaws require the election of officers to be by ballot and there is only one nominee for an office, the ballot must nevertheless be taken for that office[.] (RRO, 11th ed., Section 46)

But there's another reason.  Under Robert's Rules of Order members are entitled to nominate candidates from the floor.  Although only 3 individuals were nominated prior to the annual meeting, other owners may desire to nominate additional members at the actual annual meeting.  Once again, Robert's Rules states:

[M]embers still have the right, on the ballot, to cast "write-in votes" for other eligible persons.

In summary, going through the formal steps of balloting and electing when the outcome is obvious may seem tedious.  However, following the formalities lessens the likelihood of legal challenges down the road.

Methods of Voting

There are numerous methods of taking a vote in community associations.  For issues which may be challenged, it’s wise to use a written paper ballot.  For other non-controversial matters, associations may choose from a variety of voting methods.

Robert’s Rules of Order describes several ways to take a vote. Here’s an overview:

1. Voice

Often referred to as “viva voce”, this is a common method of voting. The chair would say, “The question is on the adoption of the motion to approve the special assessment.  Those in favor say ‘aye’, those opposed say ‘no’.  In larger assemblies where the vote is close, this may not be the most effective voting method.

2. Rising

This method is used to verify a voice vote which is inconclusive. The chair asks those in favor to stand up and a count is taken of the standing members.

3. Show of Hands

Typically used in smaller associations, this method may be used in place of a rising vote or a voice vote.

4. Ballot

For any issue which may be contested, a written ballot should be used. Written ballots allow for easy recounting and verification after the meeting. Ballots should be considered association records, i.e. owners may review and inspect the ballots.

5. Voting Cards

Some organizations, if authorized by the governing documents, use voting cards.  Voting cards are distributed to members at the start of the meeting. This method is typically used in lieu of rising or show of hands voting.

6. Electronic Voting

Technology has changed the way many associations operate. Some large associations have adopted electronic voting at annual meetings. Several services allow owners at a physical meeting to use their cell phones, tablets, or computers to cast votes.  The results are instantly counted and displayed.  One such service is: https://www.polleverywhere.com/

7. Roll Call Vote

This is an alternative method of voting which also creates a written record of the vote. The secretary or other individual appointed by the chair reads the names of each member of the association, asking if they vote yes or no on the issue.  The vote is then recorded next to the member’s name.

8. Absentee Voting

Robert’s Rules of Order discourages absentee voting: “It is a fundamental principle of parliamentary law that the right to vote is limited to the members of an organization who are actually present at the time the vote is taken at a regular or property called meeting[.]”  The point of debating a motion is that members may change their mind on an issue. If the vote is cast prior to the meeting via an absentee ballot, the debate/discussion portion of a motion is circumvented.

Understanding Proxies

Oregon and Washington law authorize the use of proxies unless prohibited by the governing documents. (RCW 24.03.085, ORS 65.231) Many condominium and homeowner associations find it impossible to achieve quorum at annual meetings without the use of proxies.

A proxy is a power of attorney between the “proxy giver” and the “proxy holder”. The proxy holder attends the ownership meeting and can act on behalf of the proxy giver, including making motions, voting, and engaging in debate.

When to Use Proxies

Proxies are typically exclusive to membership meetings, and in most cases should not be used for board meetings. Board members are elected specifically because owners trust the board member’s judgment, expertise, or knowledge.  If a board member cedes their responsibilities to another individual, then they are not fulfilling their fiduciary duties. Oregon explicitly prohibits the use of proxies in board meetings. (ORS 100.419 & 94.641)

Types of Proxies

There are many types of proxies:

1. General proxies;

2. Directed proxies;

3. Proxies for the purpose of establishing quorum; and

4. Combinations of general and directed proxies.

General proxies are ideal unless circumstances require otherwise.

The Proxy Holder

Unless prohibited by the governing documents, the proxy holder may be any individual, including individuals who may not even live in the same community. For example, I could give my proxy to my grandmother who lives in another town. What’s important is that I give my proxy to someone I trust, and who will exercise good judgment.

Proxies and Voting

Keep in mind that giving a proxy to the proxy holder does not cast a vote. It merely authorizes the proxy holder to attend the meeting and then cast votes on behalf of the proxy giver. Proxies are not absentee ballots, and there is no such thing as a “proxy ballot”.

If the proxy giver wants the proxy holder to vote a certain way, then a “directed” proxy may be used. But there are downsides to directed proxies. Suppose I give my neighbor a directed proxy which instructs my neighbor to vote for Jill for the board. However, as the meeting begins Jill decides not to run for the board, and Jane steps into Jill’s place. Now, my directed proxy is useless (not quite useless, it still counts toward the quorum requirement).

Proxy Requirements

A proxy should contain the following information:

1. Name of association

2. Name of proxy giver

3. Proxy giver’s unit, lot or address

4. Name of proxy holder

5. Date when proxy giver signs

6. Expiration date

7. Signature

Click here for a sample proxy: Sample Proxy

Preparing For Annual Meetings

Every homeowner and condominium association is required to have an annual meeting of the members. The primary purposes of the annual meeting are:

-Present annual budget to members -Elect Directors -Deliver Committee Reports -Strengthen the Community

1. Determine Notice Requirements

There are three types of meetings in community associations: annual, special, and board. Each type of meeting will have different notice requirements. Make sure you comply with the annual meeting notice requirements contained in your Bylaws.

For Oregon associations, notice of the annual meeting must be sent no less than 10 days and no more than 50 days prior to the meeting date. (ORS 100.407 / 94.650) Washington homeowners associations must send notice not less than 14 days and not more than 60 days. (RCW 64.38.035)  Annual meeting notices must be sent to all members at the last address provided to the association.

2. (Oregon) Include Reduced Quorum Language

Oregon has a unique statute which allows for a reduced quorum for ownership meetings. For condominiums, the statute is ORS 100.408, for planned communities, the statue is ORS 94.655.

If the membership meeting cannot proceed because of a lack of quorum, you may adjourn the meeting. The meeting may then immediately re-start with a reduced quorum. The reduced quorum is 1/2 of the quorum requirement or 20%, whichever is greater.

So, if your quorum requirement is 50%, the reduced quorum would be 25%. If your quorum requirement is 30%, the reduced quorum is 20% (remember, 1/2 or 20%, whichever is greater). If your quorum requirement is 20%, it stays at 20%. Keep in mind that the notice of the meeting must contain a statement that the quorum will be reduced and what the percentage will be if reduced. The language should also state that the meeting will be immediately recalled with the reduced quorum percentage (otherwise, you must wait 48 hours).

To take advantage of this statute, place a statement in the notice indicating that if quorum is not met, the meeting will be adjourned and immediately restarted with the reduced quorum. Indicate the percentage of the reduced quorum.

3. Prepare Proxies

A proxy should contain the following information:

1. Name of association 2. Name of proxy giver 3. Proxy giver’s unit, lot or address 4. Name of proxy holder 5. Date when proxy giver signs 6. Expiration date 7. Signature

Click here for a sample proxy: https://calaw.attorney/wp-content/uploads/2015/01/Sample-Proxy.doc

4. Use A Nominating Committee

Some association documents require the use of nominating committees prior to the annual meeting. In most cases, nominating committees make nominations and the election a much more efficient process. A good nominating committee will solicit names, determine if those individuals are willing to serve, gather biographies of the candidates, and present the information to the board and owners prior to the meeting. Keep in mind, unless prohibited by your governing documents, members can always nominate individuals from the floor at the actual meeting.

5. Prepare Agenda

Oregon and Washington law require annual meeting notices to state the time and place of the meetings, items on the agenda, including the general nature of any proposed amendment to the governing documents, any budget changes, or any proposals to remove directors.

Based on the recommendations in Robert’s Rules of Order, community association annual meeting agendas should include the following:

Announcement of Quorum Reading and Approval of Minutes Reports of Officers, Boards and Committees Election of Directors Unfinished Business and General Orders Announcement of Election Results New Business Adjournment

6. Know Voting Requirements

If certain items on the agenda require a vote of the owners, make sure you know beforehand the required voting threshold. For example, if the agenda includes a vote on levying a special assessment, look at your governing documents to see how many owners must vote in the affirmative. Some votes require a majority, some require a “super-majority”, and others may only require a plurality.

If your governing documents allocate votes by square footage or allow for cumulative voting, have an electronic spreadsheet ready with pre-set formulas to quickly tally votes. Also, if your Declaration or Bylaws prohibit delinquent owners from voting, make sure the names or units of those owners are excluded from voting.

6 Ways to Take a Vote

Nearly all condominium and homeowners associations use Robert's Rules of Order ("RRO").  RRO describes multiple methods of taking votes.  Depending on the type of motion which the assembly is voting on, some methods of voting are better than others. For example, any vote which may be subject to challenge should be done by written or electronic ballot. This method provides a paper trail of the votes and can be re-counted and audited. For motions which are obviously going to be uncontested, it may make sense to take a voice vote by calling for "Ayes" and "Nays."

Here is an overview of the different methods of voting found in RRO:

1. Voice Vote

For a voice vote, the chair (after debate is over) instructs the assembly to say "Aye" or "Nay".  The chair, using their discretion, then announces the outcome.

2. Roll Call Vote

This may take much longer, but it provides a record of who voted "yes" or "no".  The chair reads through the names on the roll of the assembly, including those present by proxy, and records a yes or no vote for each member.

3. Standing Vote / Raise of Hand Vote

Similar to a voice vote, the chair asks all those in favor of the motion to stand or raise their hands. Then again for those voting no.  This is useful if the vote is close and a voice vote is too difficult to determine the outcome.  Remember though, if some members are holding multiple proxies (i.e. the owner is casting one vote for themselves and 4 votes on behalf of proxy givers) it may be complicated to get an accurate count.

4. Written Ballot

For any issue which may be contested, a written ballot is always the best course of action.  A written ballot provides physical evidence of who voted which way and the total number of votes for and against the motion.  Written ballots should be kept with association records for at least one year from the date of the meeting.

5. Electronic Ballot

By statute or bylaw provisions, many associations may use electronic ballots.  Many communities have seen a dramatic increase in voter turnout when using electronic or online ballots.  Electronic ballots work similar to written ballots in lieu of a meeting.  Here's an example of an online ballot: https://calaw.attorney/online-voting/

6. Unanimous Consent

For a series of procedural or uncontested motions, the chair may announce each item or motion and then ask the assembly to approve the motions by unanimous consent.  The chair does this simply by asking the assembly if there is anyone opposed to the motions.  If there are no objections, all motions pass without debate or discussion.

Different Meanings of Majority

Condominium and homeowners association governing documents require certain association issues to be voted on. Depending on the specific issue, there may be a different voting threshold, or number of votes required for approval. Let's start with some basics. Robert's Rules of Order defines a "majority vote" as more than half of the votes cast, excluding blanks and abstentions. [RONR, 10th ed., 387)

A "super" majority is anything greater than half. However, avoid using the term "super majority," because that term may have different meanings. An amendment to your governing documents may require 75% approval by the owners. An increase in assessments may require 2/3rds of the owners to approve. Both are technically "super majorities", yet very different numbers.

You must look carefully at the language in your governing documents to understand how many votes are necessary. Here's a hypothetical:

There are 200 lots in the association. At the annual meeting 100 owners are in attendance in person or by proxy. 97 owners cast votes related to the approval of a special assessment, 3 owners abstain.

Depending on the language in your governing documents, the required votes could be very different. Here are some common voting requirements along with the votes necessary under our hypothetical:

1) "A majority of owners present in person or proxy at a meeting" = 51 2) "A majority of votes cast by owners present in person or proxy at a meeting" = 49 (remember, only 97 votes were "cast") 3) "A majority of all lot owners" = 101

Very small differences in the language results in very different outcomes. So, pay close attention to the language used in your governing documents, and make sure you know with certainty the voting thresholds before you take a vote!

Proxies for HOAs and Condominium Associations

Many community associations rely on proxies to meet quorum requirements for ownership meetings. Proxies are especially critical in communities where many of the owners may live elsewhere, or in communities where it’s difficult to get owners to attend meetings. Always check your governing documents and state law for specific proxy requirements. That said, here’s a general overview of proxies:

A proxy is a power of attorney between the "proxy giver" and the "proxy holder". The proxy holder attends the ownership meeting and can act on behalf of the proxy giver. This includes making motions, voting, and engaging in debate.

When to Use Proxies

Note that proxies are typically exclusive to membership meetings, and in most cases should not be used for board meetings. Oregon, for example, explicitly prohibits the use of proxies in board meetings. (ORS 100.419 & 94.641)

Types of Proxies

There are many types of proxies: general proxies, directed proxies, proxies for the purpose of establishing quorum, and combinations of general and directed proxies. General proxies are the most common type in community associations.

Who May be a Proxy Holder

Unless restricted by the governing documents, the proxy holder may be any individual, including individuals who may not even live in the same community. For example, I could give my proxy to my grandmother who lives in another town. What’s important is that I give my proxy to someone I trust, and who will exercise good judgment.

Proxies vs. Voting

Keep in mind that giving a proxy to the proxy holder does not cast a vote. It merely authorizes the proxy holder to attend the meeting and then cast votes on behalf of the proxy giver. Proxies are not absentee ballots, and there is no such thing as a "proxy ballot”.

If the proxy giver wants the proxy holder to vote a certain way, then a “directed” proxy may be used. But there are downsides to directed proxies. Suppose I give my neighbor a directed proxy which instructs my neighbor to vote for Emily Almberg for the board. However, as the meeting begins Emily decides not to run for the board, and Jane Smith steps into Emily’s place. Now, my directed proxy is useless (not quite useless, it still counts toward the quorum requirement).

General Proxy Requirements

A proxy should contain the following information:

1. Name of association 2. Name of proxy giver 3. Proxy giver’s unit, lot or address 4. Name of proxy holder 5. Date when proxy giver signs 6. Expiration date 7. Signature

Again, always consult your governing documents and state statute for specific proxy requirements.

Click here for a sample proxy: Sample Proxy