Court Petition to Amend Declaration

Older CC&Rs may require that an amendment to the declaration be approved by a “supermajority” (i.e., sixty-seven percent (67%)) of the association’s membership. Such requirements make it difficult for an association to pass a proposed amendment, often as a result of member apathy or lack of participation in the voting process. When this occurs, Civil Code Section 4275 provides a mechanism for the association to “petition the superior court of the county in which the common interest development is located for an order reducing the percentage of affirmative votes necessary for such an amendment.” The order may also dispense with any requirement relating to the number or percentage of votes, or to quorums, needed for approval of the amendment(s). (Civ. Code § 4275(d).Section 4275 thus serves to provide an association “with a safety valve for those situations where the need for a supermajority vote would hamstring the association.” (Blue Lagoon Community Assn. v. Mitchell (1997) 55 Cal.App.4th 472).

Petition Requirements
A petition under Civil Code Section 4275 must include the following:

  • The efforts made to solicit approval of the owners as required under the declaration;
  • The number of affirmative and negative votes received;
  • The number or percentage of votes required to approve the amendment(s) pursuant to the declaration; and
  • Anything else that may be relevant to the court’s determination.

The petition must also contain the following exhibits:

  • The governing documents;
  • Complete copy of the amendment(s);
  • Copies of any notice and solicitation materials used to solicit Owner approval;
  • A brief explanation of the reason for the amendment(s); and
  • Any other document the Court may deem relevant to the amendment(s).

Once the petition is filed, the Court must set the matter for hearing and issue an ex parte order detailing the manner in which notice is to be given. (Civ. Code § 4275(b).)

Factors Influencing the Court’s Decision
The Court may grant the petition if it finds:

  • The amendment(s) is/are reasonable;
  • The amendment(s) is/are not improper for any of the reasons set forth in Civil Code Section 4275(e);
  • The petitioner has given at least fifteen (15) days written notice of the Court hearing to:
    • All members of the association
    • Any mortgagee or beneficiary of a deed of trust who is entitled to notice under the terms of the declaration, and
    • City, county, or city and county in which the development is located and is entitled to notice under the terms of the declaration;
  • Balloting was conducted pursuant to the declaration, the Civil Code, and any other applicable law;
  • A reasonably diligent effort was made to permit all eligible members to vote on the proposed amendment(s); and
  • Members having more than fifty percent (50%) of the votes, in a single class voting structure, voted in favor of the amendment. In a voting structure with more than one class, where the declaration requires a majority of more than one class to vote in favor of the amendment, members having more than fifty percent (50%) of the votes of each class required by the declaration to vote in favor of the amendment voted in favor of the amendment. (Peak Investments v. S. Peak Homeowners Assn., Inc. (2006) 140 Cal.App.4th 1363, 1369.)

Recording Requirement
If the Court grants the petition, the Court’s order, along with the amendment(s), must be recorded in the county(ies) in which the development is located. (Civ. Code § 4275(f).) Once recorded, the amendment(s) has/have the same force and effect as if they were adopted pursuant to the amendment provisions contained in the declaration. (Civ. Code § 4275(f).) Each member in the development must be provided a copy of the amendment, either by personal delivery, or by first-class mail postage prepaid. (Civ. Code § 4275(g).)

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Related Case Law

  • Mission Shores Association v. Pheil
    (2008) 83 Cal.App.4th 789

    [Amendments to CC&Rs; Rent Restriction] An amendment to the CC&Rs which empowered the HOA to evict tenants who violate the CC&Rs was held to be reasonable.

  • Mission Shores Association v. Pheil
    (2008) 83 Cal.App.4th 789

    [Amendments to CC&Rs; Rent Restriction] An amendment to the CC&Rs which empowered the HOA to evict tenants who violate the CC&Rs was held to be reasonable.

  • Peak Investments v. South Peak Homeowners Association, Inc.
    (2006) 140 Cal.App.4th 1363

    [CC&R Amendments; Court Petition] Proposed HOA CC&R amendments must be approved by at least a simple majority of the total votes in a HOA before a trial court may reduce the approval requirement set in the CC&Rs.

  • Blue Lagoon Community Association. v. Mitchell
    (1997) 55 Cal.App.4th 472

    [Amendments to CC&Rs; Court Petition] Objectors to a petition brought pursuant to Civ. Code § 1356 (§ 4275) are not entitled to costs and attorney’s fees when the petition is denied.