The Declaration of CC&Rs is the most difficult of the governing documents to amend. In general, any amendment to the CC&Rs must be approved by a vote of the owners. An owner vote to amend the CC&Rs typically requires approval of a super-majority of the total voting power of the Association and may require approval from a government agency. There is usually a section of the CC&Rs that states the percentage of owner votes required to adopt a CC&R amendment, and sometimes the required percentage varies depending on which part of the CC&Rs is being amended. For example, the CC&Rs might state that at least 50% of the owners must approve an amendment in general, but that an amendment that would shift maintenance responsibility for some element of the property from the HOA to the individual owners requires a 75% vote. In another variation, the CC&Rs might state that to change the boundaries of someone’s lot, or to change the percentage of expenses someone pays, a 50% vote of the owners is required plus the approval of 100% of the owners who will be directly impacted by the amendment. Refer to your governing documents for specific percentages.
There are a few types of CC&R amendments that can be adopted by the board of directors without an owner vote. The board can amend the CC&Rs to delete provisions that illegally discriminate against or harass any person because of the race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information. The board can also delete references to sections of law that no longer exist or have been renumbered.
If an owners’ association is unable to get the votes needed to adopt a necessary amendment, it is possible to petition the court to amend the CC&Rs without the required number of owner votes; however, a court will not grant such a petition unless there is a good reason to ignore the voting requirement spelled out in the CC&Rs.
It is common for CC&Rs to provide that some or all amendments must be approved by eligible mortgage lenders who hold mortgages on the lots or units within the property, or by a local government agency. These provisions are intended to prevent the owners from adopting amendments that undermine the lenders’ or local government’s rights or powers. Before adopting an amendment, owners should review the CC&Rs to determine whether the approval of lenders and/or a local government agency might be required.
Once a CC&R amendment has been approved, it must be recorded in the records of the county where the property is located. A CC&R amendment that has not been recorded in the county records is not valid.