When the Votes Aren’t There, Don’t Despair

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When the Votes Aren’t There, Don’t Despair

An Overview of The Court Petition to Amend Process for CC&Rs

 

By Pejman D. Kharrazian, Esq.

It can be challenging to amend your CC&Rs, especially when owner approval requirements are high. Some documents can require approval of up to 75% of all members before the CC&Rs can be amended. Absentee owners and voter apathy can further compound the challenge of getting enough owners to vote.

If your association has tried to amend your CC&Rs but has not been able to obtain the requisite approval, fret not, as there may be a way forward. Under California Civil Code section 4275, associations can file a petition with the state superior court to seek relief when the votes aren’t there. There are few statutory prerequisites to keep in mind:

  1. The association must have held a proper vote, meaning the vote was conducted in accordance with the association’s governing documents and applicable laws;

 

  1. At least a majority (over 50%) of all owners must have voted “yes” on the amendment; and

 

  1. The association must have made a “reasonably diligent effort” to solicit votes from owners and be able to make a showing to the court that it has.

If these threshold requirements are met, the association can move forward with petitioning the court to approve the amendment based on the affirmative votes actually received. The petition papers filed with the court require a large amount of information and supporting documents and should be prepared by the association’s legal counsel to ensure all statutory requirements are met. For example, the petition must demonstrate to the court’s satisfaction that the amendment is reasonable and that all owners (and any other parties entitled to notice under the CC&Rs) were provided sufficient notice of the court proceedings.

During the petition process, owners have an opportunity file opposition papers with the court. But granting the petition is ultimately within the judge’s discretion, and even in the face of owner opposition, judges are generally quite willing to grant such petitions if the statutory requirements are met.

The petition process can take anywhere from three to six months, or longer, depending on the court’s schedule.

PRACTICE TIP:  Since the petition to amend is essentially a lawsuit, the association should involve its legal counsel in the discussion as early as possible.

Assuming the court grants the petition, then the association can proceed with recording the CC&R amendment.

Finally, the court petition process can also be used for other governing documents, such as bylaws or articles of incorporations, under California Corporations Code Section 7515, and a request to amend CC&Rs and other governing documents can be filed together with the court in one streamlined petition.