By Ryan D. Poliakoff / Published April 2018
I live in a gated “no pet” community. Currently, there are several emotional support animals (dogs) that live in the community as permitted under the Fair Housing Act. Does our condominium need to provide a designated area in our community for all dogs to relieve themselves, or does the “reasonable accommodation” only apply on a case by case, as-needed basis to accommodate those owners who, based upon their physical or emotional limitation, are unable to walk their dog outside the gated property?
Owners in a shared ownership community have a general right to use and travel through the common areas, and the entire purpose of the Fair Housing Act is to allow those persons reasonable accommodations of the rules when necessary to use both their own unit or lot, as well as the common areas. While I think the association can certainly enforce reasonable rules, such as requiring owners to pick up after their animals, I do not think that you can specify that the owners must actually leave the property with their assistance animals. The better argument is that it is reasonable to accommodate the persons who need assistance animals by allowing them to have their animals with them in the vast majority of areas of the property. (I have always felt it would be unreasonable to force an association to allow a dog in the pool, but frankly, the case law has become so liberal on this issue, who knows what will be decided down the road.)
My question involves the appropriate wording of an amendment to change the number of votes that are required to change our governing documents. We would like a stand-alone amendment that lowers the threshold from 66 2/3 percent to 51 percent. What would be the appropriate language for the stand-alone amendment? We understand that our current HOA docs require a 2/3 vote of homeowners, which we think we can get. Also, can the threshold for an amendment be 51 percent of those people who vote, or must it be 51 percent of all of the owners?
At the outset, I will strongly suggest that your community hire an attorney to prepare the amendment. Such a simple amendment is not a complicated or outrageously expensive project (probably no more than three or four hours of legal work), but it is very easy for laypersons drafting an amendment to make small mistakes that will have a significant impact down the road. For example, you do not actually want the vote to be 51 percent of the members. You want a majority, which is 50 percent, plus one vote. Those two things are not the same, and the difference could affect future votes. I have had clients pay our firm significant amounts to fix poorly worded amendments that were previously drafted by boards and passed without any legal review. It is better to do the project properly, once, while you are going through the process of soliciting the required 2/3 vote.
There is no specific limitation or minimum on the vote that may be required to amend your governing documents, other than that you need to make the initial amendment using the current 2/3 threshold. You can either require a majority of all members, or a majority of those members voting at a meeting at which a quorum has been attained. Note, however, that is a far smaller number than a majority of all owners—the maximum quorum requirement in an HOA is 30 percent, so you could conceivably be enabling your community to pass future amendments with only a bit more than 15 percent of the owners’ approval (note that this is not an issue in condominiums—the quorum requirement is whatever is specified in the bylaws, although I have seen condominium quorums that are a third or even lower). This, again, is a good reason to consult with an attorney in order to draft an amendment that satisfies your goals. If you are going to make the vote as a percentage of those participating in a meeting at which a quorum has been attained, you may want to choose a higher percentage threshold than if you were simply requiring a percentage of the membership at large.
While you are making this amendment, I would suggest that you also enable your members to vote by written consent, which is a procedure where you would simply have to mail out a voting package, and then you can conduct the vote by collecting signed consents rather than calling a meeting. Under the statutory written consent procedure, you have 90 days from the time you receive the first consent to collect the votes you need to pass an amendment, and the vote is complete as soon as you hit the required number. The catch is that you need to assume, with a written consent, that 100 percent of the members have voted—so this is a procedure that meshes best if you are requiring a percentage approval of the entire membership, rather than a percentage of a quorum.
Ryan D. Poliakoff
Partner of Backer Aboud Poliakoff & Foelster