The Board of Directors of Forest Lakes Master Association sought to amend the HOA voting procedures set forth in the Association’s Declaration. The Board requested all members vote in person or by proxy at the meeting they called to consider the amendment. With concern that they would not get full participation, the Board also announced that if they did not get enough votes at the meeting, they would go door-to-door for 30 days following the meeting to get the required two-third’s vote to approve the amendment. The amendment passed with the combined tally of votes from both the meeting and door-to-door efforts. Mr. Johnson, an owner, filed suit against the Board challenging the validity of this process of combining meeting votes and votes outside of the meeting.
Johnson v. Board of Directors of Forest Lakes Master Association
454 P.3d 623 (Ct. App. Kansas 2019)
The Facts on HOA Voting Procedures:
- Forest Lakes Master Association had a general voting rights provision in the Declaration that expressly allowed for a combination of votes in person, by proxy, or by written assent 60 days before or up to 30 days after a meeting; however, the amendment provision of the Declaration required members to approve the amendment voting in person or by proxy at a meeting.
- It was only through the combined tally of votes that the voting procedures amendment passed.
The Issue of the Suit:
Mr. Johnson argued that by going door-to-door collecting votes, the Board did not comply with the express procedures of the amendment provision of the Declaration, which did not allow for combining votes from different voting methods. He argued that an amendment to the Declaration must comply with the provisions of the Declaration’s amendment provisions and the general voting rights provision did not apply. Mr. Johnson argued that even though the membership all voted, and the amendment passed, the process for approval should render the vote null.
Court Decision on HOA Voting Procedures
The Court agreed with Mr. Johnson holding that the proposed Declaration amendment could only be approved by the owners “voting in person or by proxy,” because that’s what the Declaration’s amendment provision stated. By having a particular stipulation within the Declaration, the Board was constrained to hold to the letter of the document even though votes on other matters could be held under the more generalized HOA voting procedures with a combination of meeting and written assent votes outside a meeting.
The Kansas Court found for the homeowner.
The Cautionary Tale
Specific provisions of governing documents always control over general provisions, and the specific provisions should be followed precisely. It is always wise to confirm the process your community must follow to change its governing documents and to review with a community association attorney any case law that may impact how your board of directors applies your governing documents.
Contact NowackHoward for HOA Law Advice to Help Guide Your Board of Directors
At NowackHoward, we focus on condominium association and HOA law throughout Georgia. To learn more about our community association practice and how we can help guide your community, contact one of our attorneys today at (770) 863-8900 or by email at info@nowackhoward.com.