Based on some recent comments from our members, it appears that there still is some
misunderstanding about voting requirements for CC&R elections. The explanation that
follows will hopefully clarify this.
General CC&R Election Background
Unlike a Presidential election or a Congressional election, where a majority of those voting prevails,
a CC&R election by law must account for all those eligible to vote in the final count. The state of
California mandates that common interest associations (like BVRI) cannot change CC&R's
without the approval of a majority of the affected owners. The intent of the law is to protect
owners from rule changes enacted by a minority of the owners.
Our CC&R elections are conducted according to Article XIII, Section 1, of the CC&Rs.
The text of this section follows -
"Section 1. Amendment in General. This Declaration may be amended or revoked in any respect
by the vote or assent by written ballot of not less than a majority of the Owners of Lots within
the Properties and a majority of the Owners of Lots improved by a Residence."
In order to amend the BVRI CC&Rs, two things are required to occur -
- First - a majority of all lot owners (improved, not improved, BVRI, or not BVRI) must agree, AND
- Second - a majority of improved lot owners (BVRI or not BVRI) must agree.
These are the procedures that BVRI must follow in order to change the CC&Rs,
BVRI's Recent Polls to Determine Support for CC&Rs Change
The two polls taken were done on a less formal basis than a CC&R election because the
Board wanted to get a feel for the community consensus before spending the money on
a true CC&R election, which could run to $10,000. State law requires that, whenever CC&R's
are changed, associations like ours must bring their CC&R's up to current state law. That
means that an attorney must review the entire body of the CC&R's, not just the proposed
changes, and incorporate any other state-required changes. This must be done before the
election, so most of the money would need to be spent regardless of the later results of the
election.
Note that this refers to "lot owners" whether they actually vote or not. Since there is one
vote per lot, and a majority of all the lots must agree, a non-response is considered the
same as a “No” vote. The responses received were:
- “Yes” 160 or 38%
- “No” 98 + “No” due to non-response 168 or (266 “No” votes) or 62%
So, while a majority of those responding favored changing the CC&R's, the number was far
short of the number of votes required to change the CC&R's. Rather than focusing incorrectly
on the 160 for changing vs. the 98 against in the returned ballots, the Board must consider
the 160 for changing and the 266 who have so far not supported changing the CC&R's. The
second poll informed the property owners that a ballot not returned would be counted as a
vote against changing the CC&R's.
Based on these results, the BVRI Board of Directors has decided not to pursue the issue
of a change to the CC&Rs limiting home size in the new subdivision. We feel quite certain
those property owners who felt strongly on both sides of the issue probably voted, and, it is
unlikely that sufficient additional “yes” votes could be obtained from the 168 owners who did
not vote.
The Board feels that it has acted prudently in not going immediately to a CC&R election
without some assurance that a proposal to change the CC&R's stands a reasonable chance
of success, warranting the expenditure. The Board further feels that it has not been
demonstrated conclusively that a proposal to change has a fair chance of succeeding, but
is, in fact, not favored by a margin of 266 to 160 when counted as the state requires us to count