1.  Number of Owners Required

Utah law imposes a maximum and a minimum requirement for the number of owners necessary to approve an amendment to the governing documents.

Maximum

67% of the owners can amend the CC&Rs, even if the CC&Rs require a higher number.  Specifically, the law prohibits requiring the approval of more than 67% of the voting rights to amend governing documents, except amendments affecting: (1) unit/lot boundaries, (2) owners' voting rights, and in condominiums, (3) the undivided interest of each unit owner in the common areas and facilities.  See Utah Code § 57-8-39 or 57-8a-104.  Note that the law does not require the approval of 67% of the owners to amend governing documents, only that there can't be a higher requirement than 67%.  The law only applies after the period of administrative control by the developer.

Example 1.  A community association's CC&Rs say that the approval of 51% of all the owners is required to amend the CC&Rs.  The association desires to amend the CC&Rs regarding the number of pets allowed and to change voting rights to be based on square footages of the townhomes rather than equal.  This law has no effect and approval of 51% of the owners is required for both changes.

Example 2.  A community association's CC&Rs say that the approval of 75% of all the owners is required to amend the CC&Rs.  The association desires to amend the CC&Rs regarding the number of pets allowed and to change voting rights to be based on square footages of the townhomes rather than equal.  This law is triggered as to the pet change such that the approval of only 67% of the owners is required to amend the CC&Rs as to pets, but approval of 75% of the owners is still required to change voting rights.

Minimum

The minimum includes (1) a minimum number of owners that must approve an amendment to the CC&Rs (declaration), as well as (2) a minimum quorum requirement in a vote to amend the CC&Rs.  The law only applies after the period of administrative control by the developer.

Quorum.  The law establishes that the minimum number of owners that must participate in a vote to amend the declaration (the quorum requirement) is 51%, or a higher percentage if required in the CC&Rs.  So, in the rare instance that an association’s CC&Rs say the CC&Rs can be amended by a quorum requirement that is less than 51% of the owners, this statute overrides that requirement.  If the CC&Rs say the CC&Rs can be amended with a quorum that is more than 51% of the owners, this statute has no effect.  For instance, if the CC&Rs require a quorum of 55% of the owners, then the 55% quorum is still required. 

Approval.  Then, as to the vote itself, the minimum number of votes that can approve an amendment to the declaration is a majority vote of the voters. “Voters” means owners that actually vote, not all owners in the association and not the owners present at a meeting, just those that actually cast a vote.

Example 1.  In order to amend the CC&Rs, an association's CC&Rs require approval of a majority of the voters that vote and that at least 30% of the owners must participate in the vote.  The association has 150 owners, 45 owners are present and cast a vote, and 23 vote in favor of the amendment.  Thus, the amendment was approved by a majority of the voters that voted and at least 30% of the owners participated.  However, that is not sufficient to amend under the law.  At least 77 owners must be present (51% of 150) and if 70 of those cast a vote, 35 must vote in favor (a majority of 70).

Most CC&Rs require a much higher threshold than this statute, in which case the statute has no effect.  It is much more common for CC&Rs to require something like 51%, 60% or 67% of all owners to amend.  For instance, if the CC&Rs require approval of 60% of the owners and the association has 150 owners, at least 90 affirmative votes (60% of 150) are needed for the amendment to pass (and it doesn't otherwise matter how many owners vote).

Example 2.  An association's CC&Rs say that the approval of 60% of all the owners is required to amend the CC&Rs.  In this case, at least 51% of the owners will have to participate and more than a majority vote of the voters will have to vote in favor in order for the amendment to pass by virtue of the 60% requirement.  So, the statute is irrelevant in this case.  For instance, the association has 150 owners. At least 90 affirmative votes (60% of 150) are needed for the amendment to pass and it doesn't otherwise matter how many owners vote or participate.

The law also makes clear that a board alone cannot amend CC&Rs.

Key Point:  If your CC&Rs require an amendment to the CC&Rs to be approved by 51% or more (e.g., 60%, 67%) of the owners, the minimum requirement in the statute has no effect for your community.

Note that "governing documents" include CC&Rs, articles of incorporation, bylaws and plats, and any other written instrument by which the association may exercise powers or manage, maintain, or otherwise affect the property under the jurisdiction of the association.

2.  Procedure

The law allows an association to vote to amend governing documents at a meeting, including in person or virtual; by written ballot without a meeting (e.g., mail-in ballot); by an "action by written consent" without prior notice (petition style); or by a combination of written ballots and a meeting where owners may either submit their ballot by mail, email, etc., or in person at a meeting.  In a combination approach, the deadline can be by the end of the meeting or it could be sometime after the meeting, such as two weeks after, which can be helpful if the board or owners want to follow up with other owners after the meeting to ask for support for the amendment.

See Index, action without meeting -members.