The lower court found that the “voter apathy" is not a requirement under 4275, and that the association acted in accordance with election laws and granted the petition. The objectors filed an appeal.
The appeal concerns whether “voter apathy" is a requirement that must be met in order for a Court to grant a 4275 petition to approve a CC&Rs amendment. This is an issue that community association counselors encounter regularly when petitioning the court under Civil Code section 4275. Many courts are confused when faced with this issue because every published appellate case concerning a 4275 petition mentions “voter apathy" in the opinion based off a reference to a practice guide by Rosenberry and Sproul. However, the Code does not require a finding of “voter apathy" and such a requirement would greatly hinder community associations from getting their 4275 petitions granted. For example, if voter apathy was a requirement, the Association would need to hope for nearly 100% of the votes to be in favor of the CC&Rs amendment for a supermajority requirement because if 85% of owners in a 100-Unit CID turn out to vote on an amendment requiring 75% approval, is it voter apathy if 74 owners vote in favor and 11 owners vote against? This is why the most current practice guide by Rosenberry and Sproul “Advising Community Associations" lists this as an unresolved issue for a 4275 petition. If the appeal is successful, we would move to have the court published, thereby eliminating this argument in the future.
The Association argues that “voter apathy" is not a requirement to file a 4275 petition and would create disincentives to get owners to vote. Additionally, “voter apathy" is vague and has no definition thus subject to varying determinations by courts.
Amicus Brief
Status: Court of Appeal Opinion
Prior Opinions: Final Order and Judgment Granting Petition to Reduce the Required Voting Percentage to Amend the CC&Rs
Brief Author: Laurie Poole, Esq., CCAL Fellow
CAI Amicus Review Panel: Robert Diamond, Esq., Chair of Amicus Committee (VA), Jennifer Loheac, Esq. (GA), Greg Daddario, Esq. (NH), Gary Kessler, Esq. (CA), Tom Moriarity, Esq. (MA)