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.)

‘Voter Apathy’ is Not a Required Showing
An association is not required to plead and prove to the Court that ‘voter apathy’ was a reason for the association’s inability to obtain the requisite degree of membership approval. (Orchard Estate Homes, Inc. v. The Orchard Homeowner Alliance (2019) Cal.App.Lexis.)

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).)

An association may opt to amend or restate its CC&Rs to reflect changes in the law, to address circumstances in the development that may not have existed when it was originally formed, or to modify the rights and responsibilities of the association and its members. The requirements for amending the CC&Rs (i.e., membership approval requirements) will be set forth within the CC&Rs, or as provided for in the Civil Code.

Civil Code Section 4270(a) sets forth the three (3) primary requirements for amending the CC&Rs. Those requirements include:

1. The approval by the percentage of members required (and any other person whose approval is required) under the CC&Rs;
2. The amendment is certified, in a writing, that has been both executed and acknowledged by the officer designated in the CC&Rs or by the association for that purpose, or if no one is designated, by the president of the association; and
3. The amendment is recorded in the County in which the development is situated.

Silence in the CC&Rs as to Approval Requirement
Where the CC&Rs “does not specify the percentage of members who must approve an amendment to the declaration, an amendment may be approved by a majority of all members pursuant to Section 4065.” (Civ. Code § 4270(b).)

No Amendment Provision in the CC&Rs
“Except to the extent that a declaration provides by its express terms that it is not amendable, in whole or in part, a declaration that fails to include provisions permitting its amendment at all times during its existence may be amended at any time.” (Civ. Code § 4260.)

Balloting & Election Procedure
Voting to amend the CC&Rs must be done by secret ballot pursuant to written election rules established by the association. (Civ. Code §§ 5100, 5105(a); See also “Balloting Requirements & Procedures.”) The text of the proposed CC&R amendment must be delivered to the members with the ballot. (Civ. Code § 5115(e).)

Court Approval of Amendment/Reduction of Approval Requirement
Older sets of CC&Rs may require that an amendment to the CC&Rs 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.” (See “Court Petition to Amend Declaration”.)

Mortgagee (Lender) Approval for CC&R Amendments
When an association seeks to amend certain provisions of the CC&Rs (often defined as “material modifications” or “material amendments”), the CC&Rs may require approval for the amendment from not only the members, but also from the mortgagees (lenders) holding first mortgages on the lots or units within the association’s development. (See “Mortgagee (Lender) Approval for CC&R Amendments.”)

Correction of Outdated Code References
Subject to certain limitations, an association’s CC&Rs may be amended by the board without membership approval solely to correct outdated code references to prior Davis-Stirling Act code numbers. (See “Correction of Outdated Code References.”)