Can our association give more votes to those that own larger units/homes?

QUESTION: Our By-Laws state in all matters requiring a vote of the Owners that voting shall be on a percentage basis and the percentage of the vote to which each owner is entitled is the same as the percentage interest in the common elements which is appurtenant to such unit. The units vary from 870 to 2130 sq. ft.  Is this legal?

ANSWER: For condominiums, ARS 33-1217 provides that “The declaration (i.e. CC&Rs) shall allocate…a portion of the votes in the association, to each unit and state the formulas used to establish those allocations.” It goes on to say that “the declaration may provide: That different allocations of votes shall be made to the units on particular matters specified in the declaration.” The planned community act doesn’t give any guidance on this issue.

Moreover, most associations are non-profit corporations. The non-profit corporation act, ARS 10-3721 provides that “Unless the articles of incorporation or bylaws provide otherwise, each member is entitled to one vote on each matter voted on by the members.”

Thus we see that the Declaration, bylaws or articles may specify allocation of votes.

According the the Restatement of Property, a treatise the Court often refers to, votes may be allocated on a different basis by statute or by the declaration. Unless variations from the one-unit one vote rule are imposed by statute (which they may be in Arizona pursuant to the Condominium Act and Non-profit Corp Act) they must…

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