The general expectation has always been that any amendment to a declaration is valid as long as the required number of owners’ votes or signatures is obtained. Typically, each declaration expressly sets forth the number of votes needed to approve an amendment—generally 2/3 or 75%.

The North Carolina Planned Community, if applicable, requires at least 67%. But simply getting the number of required votes may not render an amendment valid and enforceable. On July 1, 2014, the North Carolina Court of Appeals held that obtaining the requisite vote alone does not make an amendment valid and enforceable. (See Wallach v. Linville Owners Association, Inc.)

In Wallach, Linville Owners Association, Inc. (“the Association”) recorded an Assessment Amendment to the declaration, which eliminated from the original declaration certain benefits to builders. The Court of Appeals held that, even if the required number of votes or signatures approved the Assessment Amendment, homeowners associations cannot amend provisions of the declarations regardless of the original intent of the declaration. In this particular case, the Court of Appeals noted that builders who purchased lots within the Association reasonably expected to be afforded the benefits contained in the original declaration. The Association could not now amend the Declaration to the detriment of those builders.