Last month we received several questions regarding what constitutes a majority when voting to change an association’s bylaws or the declaration. We were a little surprised by how something that seems so simple, is actually not. As they say, the devil is in the details, especially when it comes to voting on either association bylaw or declaration amendments.
“The real issue of controversy — whether the super-majority, or the majority vote at all — is if the vote is of all of the interests of a particular association, or whether it’s a percentage of only those who appear at a meeting, either in person or by proxy,” said attorney David J. Byrne of Ansell, Grimm & Aaron, PC in Princeton, New Jersey.
The two are incredibly different. So do your association documents specify that you need a majority of all owners, or just those who show up to vote? Byrne illustrated the following example: The US Constitution says that a treaty is ratified by two-thirds of the senate. There are 100 senators. You need two-thirds of 100 to vote yes in order to ratify. So everyone who doesn’t show up to vote is a “no” vote. But if only two-thirds of those present were required, then you would just need to get two-thirds of the people who show up to vote yes.
“So it’s a pretty big difference,” said Byrne. “If it requires a super-majority of everyone, then it’s difficult to secure the votes because not only do you have to contend with ‘no’ votes, but you have to contend with apathetic people who don’t vote at all.”
Byrne said that those who don’t vote are typically labeled apathetic, but he said those people could argue that they voted “no” by not voting.
“By not voting, they essentially vote,” he said, “because you need to get them to vote in favor, otherwise it’s a ‘no’ vote.”
So if your document requires 51% of all of the owners to vote yes, and there are 100 owners, you need 51 people to vote yes.
Additionally, he pointed out that in the case of a tally counting only those participating in the vote, it needs to be established whether or not those present or voting by proxy constitute a quorum, in accordance with the associations documents.
Typically, Byrne said the association’s declaration is amended by vote of the all the interests, whereas the bylaws are typically amended by a percentage of the people who show up to vote. So that is another distinction boards need to make between the definition of a majority — it depends on what is being voted on, according to that association’s documents.
“An association can amend its bylaws a lot easier than it can its declaration, generally. But the specific language of the declaration or bylaws is really important, because you can’t just assume that it’s two-thirds of every owner, or two-thirds of the people who show up. It could be one or the other,” he said.
He said it’s most often the case that an association’s declaration has one requirement for amending the declaration and another for amending the bylaws. So before an association sets out to amend either, the board needs to review the declaration.
“In New Jersey, the general rule is the amendment percentage is set by the document that is sought to be amended, except in certain situations. A condominium can be terminated if 80% of everyone votes to terminate. That’s a provision set by the statute,” he said. According to Byrne there are no other rules in New Jersey setting a certain percentage.
However, this is not the case for those seeking to amend an association’s declaration in Pennsylvania. According to Sara A. Austin of Austin Law Firm, LLC in York, Pennsylvania, there is a statutory requirement. “Pennsylvania law provides for an affirmative vote of two-thirds of owners to amend the declaration,” said Austin.
She explained that an association can require a different percentage to amend its declaration, as long as it is higher than the two-thirds required by the statute. “Bylaws internally provide the requirements for amendment, whether by the board or members, and the voting percentage required,” she said.
“Given the fact that there isn’t always an understanding as to what percentage and what amendment method is actually is in play — you really need to look at the documents,” said Byrne.