The underlying case concerns a Section 4275 petition to lower the voting requirements for a CC&R amendment. The association’s CC&Rs require 67% of owners to approve an amendment to the CC&RS, but only 62% of the owners voted in favor of the amendment. However, since 29% of the owners voted against the amendment, the objectors argued that the amendment should not be granted due to voter apathy. Also, the objectors argued that the petition shouldn’t be granted because of the lack of election rules.
The lower court found that the “voter apathy” is not a requirement under 4275, and that the association acted in accordance with the election laws and granted the petition. The objectors filed an appeal.
The Appellate Court affirmed the trial court decision holding that the trial court is not required to make any particular findings when considering a 4275 petition and that it is sufficient if the record
shows that the court considered the requisite factors in making its ruling. Looking at the statutory language of Civil Code Section 4275, the Appellate Court observed five elements required to establish the authorization of a reduction in the required voting percentage; voter apathy was not one of the five elements that must be established. Therefore, the Appellate Court declined to imply an element that was not expressed by the Legislature. The objectors filed a petitioner for review with the California Supreme Court.
Now, the Supreme Court granted review on June 19, 2019 to determine, when a trial court rules on a petition to reduce the votes required to pass an amendment to a homeowners association’s covenants, conditions, and restrictions, what, if any, role should voter non-participation play in the court’s decision?
This case holding would have great importance to community associations and community association practitioners in California. Specifically, this case will eliminate uncertainty for community associations in seeking a Court petition to “approve” CC&Rs amendments and remove an additional barrier to communities to self-governance.
Status: Notice of Settlement
Brief Author: Laurie Poole, Esq. Fellow, College of Community Association Lawyers
CAI Amicus Review Panel: Mr. Robert Diamond, Esq., Co-Chair of Amicus Committee, Mr. Gary Kessler, Esq. (CA), Co-Chair of Amicus Committee, Mr. Tom Moriarity, Esq. (MA), Ms. Jennifer Loheac, Esq. (GA), Mr. Gary Daddario, Esq. (NH)