Expert: Dan Smith - 3/5/2005

Question
-------------------------
Followup To
Question -
-------------------------
Followup To
Question -
Dear Mr Smith,
Please give me your interpretation of the intent of that portion of the statement in brackets in the following excerpt from a Declaration of Protective Covenants for a Property Owners' Association. I am trying to establish the precise meaning of the word "may" as used in this context.
Excerpt is as follows:
"Except as otherwise provided in this Declaration, and subject to provisions elseware contained in this Declaration, [any provision may be amended] from time to time upon approval of at least 75% of the voting power of the Association."

Does this statement preclude or disallow any other authority or process from accomplishing  the same goal, ie: to amend the Declaration?
Thanks for your help.
Diann


Answer -
I'm assuming the brackets are yours to guide me to the correct phrase?

It means that unless specifed elsewhere in the document itself, it takes 75% of the membership to amend the document. It disallows any procedure not specified.

I'm not sure exactly what ambiguity you think you have identified with regard to "may." Its use does not open up additional possibilities as nearly as I can tell.

Hope this helps.

FOLLOW UP QUESTION BELOW

Dear Mr Smith,
Thank you for the very prompt response. I believe there is some ambiquity in this use of the word "may" since it has a number of definitions. The most familiar to me are: (1) the permissivemness it connotes, (2) the posibility it connotes, (3) the ability or capability it connotes. The question for me is whether any of the above apply in the context the word is being used. If any of these three apply in this case, I don't believe the intent is to preclude any other authority or process to approve an amendment. It occurs to me that if the intent is to preclude other means, the word "may" should be followed with the word "only". Are there other more applicable definitions for this word used in this context? How would you write this statement if you intended to preclude other means for enacting an amendment?
This is not a minor question for me; and I hope you can add further clarification for me. I appreciate your help.
Thanks,
Diann
Answer -
The phrase "except as otherwise provided" has the same operational effect as would "only" after the "may." Beyond offering that opinion, I think you would be better off consulting an attorney in the matter. My opinion would carry no weight in court in any event.

Follow up question

Dear Mr Smith,
Other than to attempt to clarify which definition of the word "may" applies in this case, you have reached the issue in this case which has caused me to question the wording. There is no stated "other provision" in the document on this subject.
In any event, thanks for your time and comments. I haven't found any All Experts attorneys willing to provide much help in the past. I felt you would be a better source for a meaningful answer.
Diann

Answer
Well, then, there would be no other way to amend the document.  It very clearly says that unless it is amended by a method specified elsewhere in the document, this is how it is to be done. Making that qualification does not mean another methods must be specified.

If this is important enough to you, you should consult an actual attorney.