Post by Admin on Mar 1, 2014 10:45:55 GMT -5
720.306 Meetings of members; voting and election procedures; amendments.—
(1) QUORUM; AMENDMENTS.—
(a) Unless a lower number is provided in the bylaws, the percentage of voting interests required to constitute a quorum at a meeting of the members sH all be 30 percent of the total voting interests. Unless otherwise provided in this chapter or in the articles of incorporation or bylaws, decisions that require a vote of the members must be made by the concurrence of at least a majority of the voting interests present, in person or by proxy, at a meeting at which a quorum has been attained.
(1) QUORUM; AMENDMENTS.—
(a) Unless a lower number is provided in the bylaws, the percentage of voting interests required to constitute a quorum at a meeting of the members sH all be 30 percent of the total voting interests. Unless otherwise provided in this chapter or in the articles of incorporation or bylaws, decisions that require a vote of the members must be made by the concurrence of at least a majority of the voting interests present, in person or by proxy, at a meeting at which a quorum has been attained. A meeting of the members must be held at a location that is accessible to a physically handicapped person if requested by a physically handicapped person who has a right to attend the meeting (2014).
Editors Note: Added specific provision to provide access for handicapped member.
Editors Note: SLohA docs says 50% is a quorum but the statute says "unless a lower number is provided in the bylaws.." and that means that the Statute trumps SLohA docs and a quorum is 30%. It also states that ALL decisions requiring members vote must require at least a majority of a quorum. SLohA docs have no voting requirements requiring less than a majority. (At least not yet...)
(b) Unless otherwise provided in the governing documents or required by law, and other than those matters set forth in paragraph (c), any governing document of an association may be amended by the affirmative vote of two-thirds of the voting interests of the association. Within 30 days after recording an amendment to the governing documents, the association sH all provide copies of the amendment to the members.
(b) Unless otherwise provided in the governing documents or required by law, and other than those matters set forth in paragraph (c), any governing document of an association may be amended by the affirmative vote of two-thirds of the voting interests of the association. Within 30 days after recording an amendment to the governing documents, the association sH all provide copies of the amendment to the members. However, if a copy of the proposed amendment is provided to the members before they vote on the amendment and the proposed amendment is not changed before the vote, the association, in lieu of providing a copy of the amendment, may provide notice to the members that the amendment was adopted, identifying the official book and page number or instrument number of the recorded amendment and that a copy of the amendment is available at no charge to the member upon written request to the association. The copies and notice described in this paragraph may be provided electronically to those owners who previously consented to receive notice electronically (2014).
Editors Note: Amendment providing that if an amendment to the governing documents is approved, notice may be provided of the approval and that a copy may be provided upon written request. This is only applicable if the proposed amendment provided to the membership in advance of the meeting was not altered after the initial mailing before the vote.
Editors Note: SLohA documents have no amendment provision requiring 50% of the entire membership for ratifying budgets but is does require a member vote to ratify. It has always been SLohA's practice and it can be presumed that that is what the Members would approve if this were balloted. It would seem, therefore, that SLohA's practice would not conflict with the statute, unless cH allenged. The absence of the voting percentage might be seen as an administrative oversight that, if fixed, would meet the requirements of this Statute. This has not "ripened" as they say--it is not an issue or a problem that requires solving now but it should be addressed. SLohA documents also require 50% of the entire membership to pass a Rule, and is the superior document because of the deferential phrase. The 2/3 votes of the entire membership in our documents applies to the Articles of Incorporation and the Bylaws and is consistent with the Statute. Of course, the Declaration does not have an amendatory provision so it is exempted "as otherwise provided" and the statute does not apply to it.
(c) Unless otherwise provided in the governing documents as originally recorded or permitted by this chapter or chapter 617, an amendment may not materially and adversely alter the proportionate voting interest appurtenant to a parcel or increase the proportion or percentage by which a parcel shares in the common expenses of the association unless the record parcel owner and all record owners of liens on the parcels join in the execution of the amendment. For purposes of this section, a change in quorum requirements is not an alteration of voting interests. The merger or consolidation of one or more associations under a plan of merger or consolidation under chapter 607 or chapter 617 sH all not be considered a material or adverse alteration of the proportionate voting interest appurtenant to a parcel.
(d) The Legislature finds that the procurement of mortgagee consent to amendments that do not affect the rights or interests of mortgagees is an unreasonable and substantial logistical and financial burden on the parcel owners and that there is a compelling state interest in enabling the members of an association to approve amendments to the association’s governing documents through legal means. Accordingly, and notwithstanding any provision of this paragraph to the contrary:
Editors Note: The phrase "The Legislature finds..." is a trigger phrase that the provision is solidly in the public interest and governing documents are not in control. This is a very important provision and demonstrates that Members are not an island unto themselves regarding amendments to governing documents--these documents affect other parties with interest in the property, particularly financing institutions.
1. As to any mortgage recorded on or after July 1, 2013, any provision in the association’s governing documents that requires the consent or joinder of some or all mortgagees of parcels or any other portion of the association’s common areas to amend the association’s governing documents or for any other matter is enforceable only as to amendments to the association’s governing documents that adversely affect the priority of the mortgagee’s lien or the mortgagee’s rights to foreclose its lien or that otherwise materially affect the rights and interests of the mortgagees.
2. As to mortgages recorded before July 1, 2013, any existing provisions in the association’s governing documents requiring mortgagee consent are enforceable.
3. In securing consent or joinder, the association is entitled to rely upon the public records to identify the holders of outstanding mortgages. The association may use the address provided in the original recorded mortgage document, unless there is a different address for the holder of the mortgage in a recorded assignment or modification of the mortgage, which recorded assignment or modification must reference the official records book and page on which the original mortgage was recorded. Once the association has identified the recorded mortgages of record, the association sH all, in writing, request of each parcel owner whose parcel is encumbered by a mortgage of record any information that the owner has in his or her possession regarding the name and address of the person to whom mortgage payments are currently being made. Notice sH all be sent to such person if the address provided in the original recorded mortgage document is different from the name and address of the mortgagee or assignee of the mortgage as shown by the public record. The association is deemed to have complied with this requirement by making the written request of the parcel owners required under this subparagraph. Any notices required to be sent to the mortgagees under this subparagraph sH all be sent to all available addresses provided to the association.
4. Any notice to the mortgagees required under subparagraph 3. may be sent by a method that establishes proof of delivery, and any mortgagee who fails to respond within 60 days after the date of mailing is deemed to have consented to the amendment.
5. For those amendments requiring mortgagee consent on or after July 1, 2013, in the event mortgagee consent is provided other than by properly recorded joinder, such consent sH all be evidenced by affidavit of the association recorded in the public records of the county in which the declaration is recorded.
6. Any amendment adopted without the required consent of a mortgagee is voidable only by a mortgagee who was entitled to notice and an opportunity to consent. An action to void an amendment is subject to the statute of limitations beginning 5 years after the date of discovery as to the amendments described in subparagraph 1. and 5 years after the date of recordation of the certificate of amendment for all other amendments. This subparagraph applies to all mortgages, regardless of the date of recordation of the mortgage.
Disclaimer: I am not an attorney and the interpretations above are my opinion and offered for informational purposes only. These interpretations should not be relied upon if you are contemplating legal action. Consult an attorney for legal advice.
(1) QUORUM; AMENDMENTS.—
(a) Unless a lower number is provided in the bylaws, the percentage of voting interests required to constitute a quorum at a meeting of the members sH all be 30 percent of the total voting interests. Unless otherwise provided in this chapter or in the articles of incorporation or bylaws, decisions that require a vote of the members must be made by the concurrence of at least a majority of the voting interests present, in person or by proxy, at a meeting at which a quorum has been attained.
(1) QUORUM; AMENDMENTS.—
(a) Unless a lower number is provided in the bylaws, the percentage of voting interests required to constitute a quorum at a meeting of the members sH all be 30 percent of the total voting interests. Unless otherwise provided in this chapter or in the articles of incorporation or bylaws, decisions that require a vote of the members must be made by the concurrence of at least a majority of the voting interests present, in person or by proxy, at a meeting at which a quorum has been attained. A meeting of the members must be held at a location that is accessible to a physically handicapped person if requested by a physically handicapped person who has a right to attend the meeting (2014).
Editors Note: Added specific provision to provide access for handicapped member.
Editors Note: SLohA docs says 50% is a quorum but the statute says "unless a lower number is provided in the bylaws.." and that means that the Statute trumps SLohA docs and a quorum is 30%. It also states that ALL decisions requiring members vote must require at least a majority of a quorum. SLohA docs have no voting requirements requiring less than a majority. (At least not yet...)
(b) Unless otherwise provided in the governing documents or required by law, and other than those matters set forth in paragraph (c), any governing document of an association may be amended by the affirmative vote of two-thirds of the voting interests of the association. Within 30 days after recording an amendment to the governing documents, the association sH all provide copies of the amendment to the members.
(b) Unless otherwise provided in the governing documents or required by law, and other than those matters set forth in paragraph (c), any governing document of an association may be amended by the affirmative vote of two-thirds of the voting interests of the association. Within 30 days after recording an amendment to the governing documents, the association sH all provide copies of the amendment to the members. However, if a copy of the proposed amendment is provided to the members before they vote on the amendment and the proposed amendment is not changed before the vote, the association, in lieu of providing a copy of the amendment, may provide notice to the members that the amendment was adopted, identifying the official book and page number or instrument number of the recorded amendment and that a copy of the amendment is available at no charge to the member upon written request to the association. The copies and notice described in this paragraph may be provided electronically to those owners who previously consented to receive notice electronically (2014).
Editors Note: Amendment providing that if an amendment to the governing documents is approved, notice may be provided of the approval and that a copy may be provided upon written request. This is only applicable if the proposed amendment provided to the membership in advance of the meeting was not altered after the initial mailing before the vote.
Editors Note: SLohA documents have no amendment provision requiring 50% of the entire membership for ratifying budgets but is does require a member vote to ratify. It has always been SLohA's practice and it can be presumed that that is what the Members would approve if this were balloted. It would seem, therefore, that SLohA's practice would not conflict with the statute, unless cH allenged. The absence of the voting percentage might be seen as an administrative oversight that, if fixed, would meet the requirements of this Statute. This has not "ripened" as they say--it is not an issue or a problem that requires solving now but it should be addressed. SLohA documents also require 50% of the entire membership to pass a Rule, and is the superior document because of the deferential phrase. The 2/3 votes of the entire membership in our documents applies to the Articles of Incorporation and the Bylaws and is consistent with the Statute. Of course, the Declaration does not have an amendatory provision so it is exempted "as otherwise provided" and the statute does not apply to it.
(c) Unless otherwise provided in the governing documents as originally recorded or permitted by this chapter or chapter 617, an amendment may not materially and adversely alter the proportionate voting interest appurtenant to a parcel or increase the proportion or percentage by which a parcel shares in the common expenses of the association unless the record parcel owner and all record owners of liens on the parcels join in the execution of the amendment. For purposes of this section, a change in quorum requirements is not an alteration of voting interests. The merger or consolidation of one or more associations under a plan of merger or consolidation under chapter 607 or chapter 617 sH all not be considered a material or adverse alteration of the proportionate voting interest appurtenant to a parcel.
(d) The Legislature finds that the procurement of mortgagee consent to amendments that do not affect the rights or interests of mortgagees is an unreasonable and substantial logistical and financial burden on the parcel owners and that there is a compelling state interest in enabling the members of an association to approve amendments to the association’s governing documents through legal means. Accordingly, and notwithstanding any provision of this paragraph to the contrary:
Editors Note: The phrase "The Legislature finds..." is a trigger phrase that the provision is solidly in the public interest and governing documents are not in control. This is a very important provision and demonstrates that Members are not an island unto themselves regarding amendments to governing documents--these documents affect other parties with interest in the property, particularly financing institutions.
1. As to any mortgage recorded on or after July 1, 2013, any provision in the association’s governing documents that requires the consent or joinder of some or all mortgagees of parcels or any other portion of the association’s common areas to amend the association’s governing documents or for any other matter is enforceable only as to amendments to the association’s governing documents that adversely affect the priority of the mortgagee’s lien or the mortgagee’s rights to foreclose its lien or that otherwise materially affect the rights and interests of the mortgagees.
2. As to mortgages recorded before July 1, 2013, any existing provisions in the association’s governing documents requiring mortgagee consent are enforceable.
3. In securing consent or joinder, the association is entitled to rely upon the public records to identify the holders of outstanding mortgages. The association may use the address provided in the original recorded mortgage document, unless there is a different address for the holder of the mortgage in a recorded assignment or modification of the mortgage, which recorded assignment or modification must reference the official records book and page on which the original mortgage was recorded. Once the association has identified the recorded mortgages of record, the association sH all, in writing, request of each parcel owner whose parcel is encumbered by a mortgage of record any information that the owner has in his or her possession regarding the name and address of the person to whom mortgage payments are currently being made. Notice sH all be sent to such person if the address provided in the original recorded mortgage document is different from the name and address of the mortgagee or assignee of the mortgage as shown by the public record. The association is deemed to have complied with this requirement by making the written request of the parcel owners required under this subparagraph. Any notices required to be sent to the mortgagees under this subparagraph sH all be sent to all available addresses provided to the association.
4. Any notice to the mortgagees required under subparagraph 3. may be sent by a method that establishes proof of delivery, and any mortgagee who fails to respond within 60 days after the date of mailing is deemed to have consented to the amendment.
5. For those amendments requiring mortgagee consent on or after July 1, 2013, in the event mortgagee consent is provided other than by properly recorded joinder, such consent sH all be evidenced by affidavit of the association recorded in the public records of the county in which the declaration is recorded.
6. Any amendment adopted without the required consent of a mortgagee is voidable only by a mortgagee who was entitled to notice and an opportunity to consent. An action to void an amendment is subject to the statute of limitations beginning 5 years after the date of discovery as to the amendments described in subparagraph 1. and 5 years after the date of recordation of the certificate of amendment for all other amendments. This subparagraph applies to all mortgages, regardless of the date of recordation of the mortgage.
Disclaimer: I am not an attorney and the interpretations above are my opinion and offered for informational purposes only. These interpretations should not be relied upon if you are contemplating legal action. Consult an attorney for legal advice.