What does "the voting property owners" mean? (Texas)

[Osmigo]

This is in Texas, pertaining to an HOA of a semi-rural subdivision.

Texas Property Code refers to certain proposals requiring approval by - quote - "2/3 of the voting property owners."

Given that each property owner in the subdivision is eligible to vote, does that mean:

1. 2/3 of the property owners

2. 2/3 of the property owners that actually voted

I'm thinking the latter, #2. The ones that voted are "voting." Otherwise it would say "2/3 of the eligible voters" or maybe "2/3 of the property owners."

Or if it were #2, it might say "2/3 of the votes cast.." perhaps.

But that's just my non-lawyer opinion. One of the problems with questions like this is that it's hard to get any really citeable interpretation. It's all "in my opinion....." or "Well, I think....." You can't exactly look this up in Black's Law Dictionary.

I would love to hear your thoughts. And if you're an attorney, please say so, if it's OK. Thanks so much!

 

[PayrollHRGuy]

2/3rds of those who vote. "voting property owners".

 

[Zigner]

This is in Texas, pertaining to an HOA of a semi-rural subdivision.

Texas Property Code refers to certain proposals requiring approval by - quote - "2/3 of the voting property owners."

Please post a link or cite to those proposals. I have a feeling that "voting property owners" isn't quite how it's worded...but I could be wrong.

 

[Osmigo]

Please post a link or cite to those proposals. I have a feeling that "voting property owners" isn't quite how it's worded...but I could be wrong.

Texas Property Code 211.004(b):
An amendment procedure submitted to a vote under Subsection (a) binds all property owners in the subdivision or the unit or parcel of the subdivision to which the procedure applies if more than two-thirds of the voting property owners vote in favor of the procedure.

 

[Zigner]

Thank you. I would agree that the section in question refers to property owners who actually voted.

 

[quincy]

Two-thirds of the property owners who voted. Otherwise it would say “eligible voters.”

 

[adjusterjack]

Example: If there are 100 property owners in the HOA and only 75 vote, then it takes 50 votes in favor to pass the item in question.

Here's something else for you to chew on, Osmigo.

Does a husband and wife (or any combination of joint owners) get one vote per owner or one vote per home?

That's something that you might find in your CC&Rs if not in the statute.

 

[quincy]

One of the problems with trying to determine the meaning of a clause or provision in isolation of the rest of a document is that what comes before or after the clause or provision can change or define the meaning. That is why the entirety of a document must be read rather than bits and pieces pulled from it.

Here is a link to the Texas Property Code Chapter 11, which better explains the voting:

https://statutes.capitol.texas.gov/Docs/PR/htm/PR.211.htm

 

[Osmigo]

Thanks for the replies. This is 211.004(b) of Texas Property Code. Our subdivision meets the requirements of 211.001(4)(A)(i). It is in Kendall County, pop. 49,000.

Adjusterjack: per 211.004(e), only one vote per owner, even if there are multiple owners. What the CCRs say is irrelevant; the question pertains to interpretation of TPC 211.004(b).

 

[quincy]

You need to read past section 211.004 (b) and read 211.004 (c)(2) where it says “the date by which a property owner’s ballot must be received to be counted ...”

Only the property owners who submit ballots by X date will have their votes counted. It will be those property owners who are the “voting property owners.”

 

[Osmigo]

You need to read past section 211.004 (b) and read 211.004 (c)(2) where it says “the date by which a property owner’s ballot must be received to be counted ...”

Only the property owners who submit ballots by X date will have their votes counted. It will be those property owners who are the “voting property owners.”

Excellent point! I did read that - it adds a stricter parameter for being included in the "voting property owners."

 

[quincy]

Excellent point! I did read that - it adds a stricter parameter for being included in the "voting property owners."

To include all voting property owners, there would need to be a statement saying something like, “if no ballot is submitted, it will be considered a ‘no’ vote.” And that would be problematic in many different ways, including legally problematic.

 

[Osmigo]

To include all voting property owners, there would need to be a statement saying something like, “if no ballot is submitted, it will be considered a ‘no’ vote.” And that would be problematic in many different ways, including legally problematic.

That's exactly what's happening in our subdivision. Our CCR's say that for an amendment to pass, it must be approved by "2/3 of the votes in the association." We have 33 lots, owned by about 24 people. One vote per lot owned. 33 possible votes. 2/3 of 33 = 23. What happens is, there are always 7 or 8 non-voters. These are typically out-of-state owners who just don't bother. Plus, there are a couple of old-time, malcontent board members who own 2 lots each, and always vote against EVERYTHING. So that right there consumes over 1/3 of the possible votes, leaving the residents completely unable to pass anything.

So functionally, yes, those non-voters are counted as "no" votes. It would indeed be nice if we could get that voided in a court decision, but I don't know if that's feasible. To my knowledge, there are no requirements anywhere for HOA amendment procedures; it's up to them how they do it.

The TPC above sets statutory rules for changing the amendment process; that's why I wanted clarification. It could be extremely valuable if we can get to the point of changing our amendment rules.

 

[quincy]

That's exactly what's happening in our subdivision. Our CCR's say that for an amendment to pass, it must be approved by "2/3 of the votes in the association." We have 33 lots, owned by about 24 people. One vote per lot owned. 33 possible votes. 2/3 of 33 = 23. What happens is, there are always 7 or 8 non-voters. These are typically out-of-state owners who just don't bother. Plus, there are a couple of old-time, malcontent board members who own 2 lots each, and always vote against EVERYTHING. So that right there consumes over 1/3 of the possible votes, leaving the residents completely unable to pass anything.

So functionally, yes, those non-voters are counted as "no" votes. It would indeed be nice if we could get that voided in a court decision, but I don't know if that's feasible. To my knowledge, there are no requirements anywhere for HOA amendment procedures; it's up to them how they do it.

The TPC above sets statutory rules for changing the amendment process; that's why I wanted clarification. It could be extremely valuable if we can get to the point of changing our amendment rules.

You can try to change the rules. See how many residents want to join you.

 

[adjusterjack]

Adjusterjack: per 211.004(e), only one vote per owner, even if there are multiple owners. What the CCRs say is irrelevant; the question pertains to interpretation of TPC 211.004(b).

No it does not. If all you are doing is "interpreting" (b) then one person can "interpret" it one way and another person can "interpret" it another way. When there are conflicting "interpretations" you either end up in court or you follow the CC&R which is a binding contract.

That being said, there is no need to interpret (b) because (e) answers the question I posed:

"If more than one person owns an interest in a lot, the owners may cast only one vote for that lot."

there are a couple of old-time, malcontent board members who own 2 lots each, and always vote against EVERYTHING.

Is also addressed by (e):

"A property owner may not cast more than one vote, regardless of the number of lots the person owns."

How does the math work out if you don't count the additional votes of owners of multiple lots?