Voter Apathy Not Necessary to Have Court Amend Voting Rules

In California, associations that can’t get a popular CC&R amendment passed because of supermajority voting requirements have another option — they can ask a court to amend the voting requirement to make it less onerous. A common question in such situations is whether an association must show voter apathy before a court can act. In this week’s e-alert we’ll look at the case, and in a new article we examine how a California Court of Appeals came down on the issue.

California law lets an association turn to the courts to change the percentage of votes required to amend its CC&Rs, a helpful provision when communities have trouble reaching a super-majority. Opponents may claim that an association has to prove “voter apathy” to go this route.

“Under Civil Code Section 4275, an HOA can petition the court to reduce the required voting percentage to amend its CCRs down to a bare majority of 51 percent,” says attorney Tim Flanagan, a partner in the San Diego office of Berding Weil, which represents community associations throughout California.

That’s what happened when an association located in Indio, near the site of the annual Coachella music festival, tried to ban short-term rentals of units. Eight-five of the 93 owners cast votes. Sixty-two percent of them voted in favor of the amendment, but the CC&Rs required approval by a 67 percent super-majority of owners.

“They tried to pass this amendment four or five years ago,” says Flanagan, who represented the association. “It was really hard to get to that super-majority even though a large percentage of owners wanted the rule.”

The association filed a petition under Section 4275. An alliance of owners who had purchased units for short-term rental purposes opposed the petition, but the trial court approved it. The alliance appealed, arguing that the lower court should have considered voter apathy.

To discover what the court said and the implications of its ruling for community associations, read our new article Court Petition to Amend CC&Rs without Required Votes Needn’t Show Voter Apathy.

Best regards,
Matt Humphrey
President