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Alaska Statutes.

Title 34. Property

Chapter 8. Common Interest Ownership

Section 255. Amendment of a Declaration Where Fewer Than 50 Percent of Unit Owners Approve.

previous: Section 250. Amendment of Declaration.
next: Section 260. Termination of Common Interest Community.

AS 34.08.255. Amendment of a Declaration Where Fewer Than 50 Percent of Unit Owners Approve.

(a) If a declaration requires owners having more than 50 percent of the votes in the association in a single class voting structure or unit owners having more than 50 percent of the votes in more than one class in a voting structure with more than one class to vote in favor of an amendment in order to amend a declaration, the association or a unit owner may petition the superior court for the judicial district in which the common interest community is located for an order reducing the percentage of the affirmative votes necessary for the adoption of the amendment. The petition shall describe the efforts that have been made to solicit the approval of the unit owners in the association in the manner required by the declaration, the number of affirmative and negative votes actually received, the number of percentage of affirmative votes required to adopt the amendment under the declaration, and any other matter the petitioner considers relevant to the determination of the court. The petition must include as exhibits to the petition a copy of

(1) the governing documents;

(2) a complete text of the amendments;

(3) a copy of each notice and the solicitation materials used in the solicitation of the approval of the amendment by the unit owners;

(4) an explanation of the reason for the amendment;

(5) other documentation relevant to the determination by the court.

(b) When the petition is filed with the superior court, the court shall set the matter for hearing and issue an ex parte order setting out the manner in which notice shall be given to the unit owners in the association.

(c) The court may, but is not required to, grant the petition if it finds that

(1) the petitioner has given not less than 15 days' written notice of the court hearing to

(A) each unit owner in the association;

(B) a mortgagee of a mortgage or beneficiary of a deed of trust that is entitled to notice under the provisions of the declaration; and

(C) the municipality in which the common interest community is located if it is entitled to notice under the declaration;

(2) the balloting on the proposed amendment was conducted under each of the applicable provisions of the declaration, bylaws, and rules or regulations of the association;

(3) a reasonably diligent effort was made to permit each eligible unit owner to vote on the proposed amendment;

(4) in a common interest community with a single class voting structure, unit owners with more than 50 percent of the votes voted in favor of the amendment;

(5) in a voting structure with more than one class and where the declaration requires a majority of more than one class to vote in favor of the amendment, unit owners having more than 50 percent of the votes in each class required by the declaration to vote in favor of the amendment did vote in favor of the amendment;

(6) the amendment is reasonable; and

(7) granting the petition is appropriate considering the circumstances.

(d) If the court makes the findings required in (c) of this section, an order issued under this section may

(1) confirm the amendment as being validly approved on the basis of the affirmative votes actually received during the balloting period; or

(2) dispense with a requirement relating to quorums or to the percentage of votes needed for approval of an amendment under the governing documents.

(e) A court may not approve an amendment to a declaration under this section that

(1) would change the provision in a declaration requiring the approval of unit owners having more than 50 percent of the votes in more than one class to vote in favor of an amendment unless more than 50 percent of the unit owners in each affected class of unit owners approve the amendment;

(2) would eliminate a special right, preference, or privilege designated in the declaration as belonging to the declarant without the approval of the declarant; or

(3) would impair the security interest of a mortgagee of a mortgage or the beneficiary of a deed of trust without the approval of the percentage of the mortgagees and beneficiaries specified in the declaration if the declaration requires the approval of a specified percentage of the mortgagees and beneficiaries.

(f) An amendment to the declaration approved under this section is not effective until the order of the court and the amendment have been recorded in each recording district in which a portion of the common interest community is located. The amendment may be acknowledged by, and the court order and amendment may be recorded by, an individual designated in the declaration or by the association and, if no one is designated for that purpose, by the president of the association. On the recording of the amendment and the court order, the declaration, as amended under this section, has the same force and effect as if the amendment were adopted in compliance with the declaration.

(g) Within a reasonable time after the recording of the amendment under (f) of this section, the association shall mail a copy of the amendment to each unit owner in the association together with a statement that the amendment has been recorded.