Special assessments for capital expenditures

by James Licciardi
(Meraux, La. USA)

Visitor Question: Our master deed states that a majority of owners must be present to vote on special assessments. Proxy voting is not in our master deed and a majority of members present was not reached. The board then had proxy votes presented to make a majority. Is this allowed, not being in our master deed?

Editors Reply: James, this is a question we cannot answer with certainty, but we will give you some ideas on how to think about this.

On the surface, it sounds like this would not be allowed.

But then, the master deed, or other documents that have been adopted as allowed by the master deed, may give the HOA members, board members, or an executive committee of the board the leeway to make rules of all kinds, including voting rules. Sometimes these powers are extremely broad. If this is the case in your development, then this voting method may have been quite appropriate.

If you disagree with this assessment, begin by asking officers of the association how they justify this voting method. Then of course if they have no reasonable answer, you have to decide whether you want to mount a legal challenge, refuse to pay, or take another action.

Unless the situation to be addressed by the special assessment is an emergency health or safety related issue (such as avoiding raw sewerage or addressing an outright cave-in of your entrance road, for example), ask the HOA officers to conduct another meeting to hold a proper vote. Since summer is upon us in the Northern Hemisphere, this can be a picnic or party to give people a reason to come out. With good planning, proper health precautions can be taken, even during this pandemic.

Just for the benefit of all readers, we want to observe that all homeowners associations should consider carefully their voting methods. For example, are proxy votes, electronic votes, telephone votes, and advance voting acceptable? Who determines which voting methods will be allowed for HOA matters?

Sometimes an HOA will need to consult its attorney to decide on appropriate voting rules and how those should be adopted. Since there is little or no uniformity of covenants and HOA regulations, all of this has to be determined on a case by case basis. Make the HOA rules as clear as possible.


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Deed Restrictions-Rural TX
by: Anonymous

Hello,

I have a situation developing regarding deed restrictions referencing the term Residential.
Current deed restrictions prescribe that only residential is permissible.

I purchased 7 years ago with the intention of building duplexes in conjunction with 2 existing single family homes.

A majority of the 7 original owners now want to go back and amend the term residential to state single family only.

I feel that we will be economically harmed by this action.

What do you feel is the appropriate response to this matter?

TY
TomL

Editors Reply: Tom, thanks for the question. Note that between Wednesday and Friday of this coming week, we are going to move and retitle your comment because it does not pertain to special assessments. Its new title will be Changing Deed Restrictions to Prohibit Duplexes, and it will be reached from the deed restriction questions page. If you have trouble finding it, use the Contact feature of the website. We are sorry our platform does not permit us to contact you in advance about this.

To answer your question, there are two reasonable choices. If you think there is any chance of persuading your neighbors to accept your particular duplex proposal by showing them your design and explaining your plans in detail, try to arrange a meeting with them in hopes they will change their minds.

If this isn't feasible either because of attitudes or the logistics, we think you should consult an attorney immediately. You may receive advice to threaten or start a legal action. We are not attorneys but rather planners, but we do think that the plain meaning of residential covers not only single-family, but duplexes, triplexes, fourplexes, and even larger buildings. So we think you are in the right. However, if you wait a while, you make it more and more likely that the change will be accomplished quickly; depending on the exact wording of the deed restrictions before and after the change, there might be nothing you can do at that point.

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