Court Holds Showing of Voter Apathy Not Required on Petition to Amend Declaration Despite Lack of Requisite Votes

By: Jacqueline Pagano, Esq.
Feldsott Lee & Canfield

                Civil Code §4275 in the Davis-Stirling Common Interest Development Act allows a community association to petition the court to confirm an amendment to the CC&Rs, despite the fact that the proposed amendment was not approved by the requisite number of members set forth in the CC&Rs.

                The governing documents of many common interest developments require the vote of a “super majority” of members in order to amend the CC&Rs.  Civil Code §4275 provides: “If in order to amend a declaration, the declaration requires members having more than 50 percent of the votes in the association, [ . . . ] to vote in favor of the amendment, the association, or any member, may petition the superior court of the county in which the common interest development Is located for an order reducing the percentage of the affirmative votes necessary for such amendment.”

                A court may grant such a petition under Civil Code §4275 if it finds all of the following: (i) notice was properly given; (ii) balloting was properly conducted in accordance with the governing documents and law; (iii) reasonable efforts were made to permit eligible members to vote; (iv) owners having more than 50 percent of the votes voted in favor of the amendment; and (v) the amendment is reasonable.

                In Orchard Estate Homes, Inc. v. The Orchard Homeowner Alliance (2019), Orchard Estates Homes (“HOA”), a 93-unit planned residential development located east of Indio, California, sought member approval of a CC&R amendment to prohibit short-term rentals of units for durations of less than 30 days.  Over 91 percent of the members participated in the vote on the proposed amendment, with 58 votes in favor and 27 opposed.  While approximately 62 percent of the owner-members voted to prohibit short-term rentals, this was shy of the 67 percent approval required to amend the CC&Rs.

                The HOA filed a petition pursuant to Civil Code §4275 seeking authorization to reduce the percentage of affirmative votes to adopt the amendment, which was opposed by a group of homeowners.  The trial court granted the petition, and the opposing homeowners appealed, arguing that the trial court erred in ruling that voter apathy was not an element of Civil Code §4275.

                The Court of Appeals affirmed holding that while addressing voter apathy may have been part of the legislative purpose of Civil Code §4275, the statutory language sets forth only five elements required to be established to authorize a reduction in the required voting percentage to amend the CC&Rs.  Voter apathy is not among the listed elements that must be alleged or proven to obtain relief under §4275.

                As a result of this holding, a  homeowners association can petition the court for relief under Civil Code §4275 so long as it can establish the five elements enumerated in the stature, regardless of whether the failure for the amendment to pass was the result of voter apathy or a successful opposition.