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Can I challenge declaration amendment before it is recorded?

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dsconnelly

Junior Member
I own and live in a condo unit in Vermont.

The process specified for amending our Declaration is stringent but specific. Amendment requires “written approval of owners owning in the aggregate of fifty-one (51%) percent or more of the aggregate ownership interest”.

Over the past 10 years, four amendments have been "passed" by voice vote only. The recorded amendments (in the local real estate registry) state that the amendment was passed by vote of 51% of the owners. There is no recorded "written approval" from any owners in the real estate registry or in the condominium association records.

Two new amendments to the Declaration are now pending and will be voted at an upcoming meeting. Although I actually favor the goals these 2 amendments (in substance), I think it is harmful to continue using a worthless form of adoption. These amendments should be adopted using the correct process, which is written approvals, not a show-of-hands vote.

I want to block any attempt to record a new amendment that does not have have signatures (physical or electronic) from the aggregate ownership, as the process clearly specifies.

How can I do this? Injunction?

I assume that recording fraudulent material would be punishable even in the absence of direct monetary damage. Is this also true if the recorded document states that the amendment was adopted by a vote (which is true), but fails to state that the required written approvals were not obtained, that the vote was inadequate to pass the amendment?
 


dsconnelly

Junior Member
Financial Harm

Answer to myself: You cannot block the recording of bogus amendment, not in Vermont at least. Consequently, land records are, by now, full of weak and amateurish hacks added to declarations and bylaws. For my own association, I am crazy enough to want to force them to clean up the bogus amendments before a time bomb with serious consequences does blow up.

Legally speaking, if there is no financial harm, there is basically nothing that can be done to challenge a bogus amendment. It takes financial harm before I can take this to a Court in Vermont. In court, it would go to mediation and could be cleaned up.

Consequently, I need to find a financial harm that I can take to small claims court as a test case, to prove my point.

The dryer vent cleaning amendment should work as a test case.

Declaration amendment in 2001 says that the HOA will send in their contractor to clean their vent, but I must pay for the work. Although I agree with the intent of this amendment, it could have been done better in the bylaws. But wasn't. Instead it was "adopted" as an amendment to the Declaration, using a bogus process (voice vote) for a Declaration change.

Since the adoption was bogus, the risk of fire due to an overheated dryer has not been foreclosed.

If I do not pay their contractor, they will fine me. (Actually, I am happy to do the work, but I should be able to pick my own contractor. Dryer works better with the clean vent, in any case.)

Question: What harm works best for legal purposes? I can wait for them to fine me, pay the fine and then take the HOA to court for charging an unauthorized fine. Or, I can just wait for them to take me to court for not paying their fine. Either way, I can prove that the "fine" is an unreasonable financial burden since I do maintain the dryer vent independently.
 
Last edited:
Well, dryer vent cleaning is pretty standard. You may in fact find it is a law, as it is in NJ.

I think the financial damage in your situation would be the cost difference between the HOA mandated contractor and one you could hire on your own... if yours was much cheaper.

In my humble opinion, you're reaching. It would be best to save the fireworks for a real celebration.
 

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