Can the HOA change the assessment structure without my consent?
Posted on Sat, Apr 16, 2011 @ 07:26 AM
I live in a 17 unit condo building. My unit is the third SMALLEST unit (about 625 sq. ft.) There are 14 units larger than mine (around 1200 sq. ft.) The CC&Rs include the Enabling Declaration (hereinafter "Declaration") and the By-Laws. According to the Declaration, under the "Extent of Ownership and Possession" paragraph, my percentage interest in the common areas is 4.5%. In this paragraph, it specifically states that "no such amount of interest shall be altered without the consent of all owners."
In the By-Laws, under the paragraph "Allocation of Assessments", it states that "the owner of each unit shall be obligated to pay that portion of the Common Expenses and Special Assessments which is equivalent to his percentage interest in the Common Areas." Since I purchased this unit in 1986, I have always paid 4.5% for common expenses and special assessments.
Last year the HOA hired an attorney to update our CC&Rs. I just received a draft copy and they changed the assessment structure from pro rata to every unit sharing equally. I think this is improper, illegal and unlawful because by sharing equally in the common expenses, they are altering my percentage of ownership in the common areas from 4.5% to 5.9%. I did not give my consent to altering my ownership percentage in the common areas so they cannot change my 4.5% ownership to 5.9% ownership. I know the By-Laws can be amended with a majority vote. However, in the By-Laws under the "Amendments" paragraph, it specifically states that "These By-Laws (EXCEPT FOR THOSE PROVISIONS PREEMPT BY THE DECLARATION) may be amended by a vote of a majority of a quorum of members. Under the "Extent of Ownership and Possession" paragraph in the Declaration, my percentage interest in the common areas is 4.5% and it specifically states that "no such amount of interest shall be altered WITHOUT THE CONSENT OF ALL OWNERS." The "Extent of Ownership" provision in the Declaration is for the sole purpose of assessments and the term "no such amount of interest shall be altered without the consent of all owners" therein protects the minority small unit owners from improper and unlawful assessments. Can the HOA change the assessment structure without my consent? Can I refuse to sign the new CC&Rs unless there is a court order? Thanks very much.