RubyB
(Florida)
Posts:1
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| 06/12/2006 12:32 PM |
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MY BOARD WOULD LIKE TO CHANGE SOME OF THE BY-LAWS FOR OUR ASSOCIATION WHICH HAVE NOT BEEN CHANGED SINCE 1988. WE WOULD LIKE TO CHANGE THE QUARM AND TERM OF SERVICE TO TWO YEARS AND ADD THE RIGHT TO FINE FOR NON-COMPLIENCE.THIS IS WHAT OUR DECLARATION OF CONVENANTS SAYS:
ARTICLE X
BY-LAWS- THE BY-LAWS OF THIS ASSOCIATION SHALL BE INITIALLY ADOPTED BY THE BOARD OF DIRECTORES.. THEREAFTER, THE BY-LAWS SHALL BE AMENDED, OR RESCINDED BY A MAJORITY VOTE OF THE BOARD OF DIRECTORES.
BUT THEN IT SAYS; AMENDMENTS:
ANY AMENDMENT OF THE ARTICLE SHALL REQUIRE ASSENT OR WRITTEN CONSENT OF THE MEMBERS ENTITLED TO CAST FIFTY ONE PERCENT OF THE TOTAL VOTES ABLE TO BE CAST AT ANY REGULAR OR SPECIAL MEETING OF THE MEMBERSHIP DULY CALLED AND CONVENED. NO SUCH AMENDMENT MAY DIMINISH ANY RIGHTS OF THE CLASS B MEMBER, HOWEVER, UNLESS JOINED IN BY SUCH CLASS B MEMBER.
SO CAN THE BOARD OF DIRECTORS AMEND THE BY-LAWS. |
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RogerB
(Colorado)
Posts:3726
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| 06/12/2006 12:53 PM |
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| Yes, if that is what your Declarations says. |
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Roger Borcherding
Official HOATalk.com Sponsor
DARCO Property Management (Colorado)
(303) 925-0150 
*See legal notice below (end of page) or go to www.hoatalk.com/legal |
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KennethC
(Alabama)
Posts:27
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| 06/12/2006 1:02 PM |
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Posted By RogerB on 06/12/2006 12:53 PM
Yes, if that is what your Declarations says.
Ok... say it does. How does the amendment process work? How does it be come part of the legally filed paperwork?
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BradP
(Kansas)
Posts:1742
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| 06/12/2006 1:12 PM |
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File it with the correct municipality, we file ours with the local county register of deeds.
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GeraldT1
Posts:0
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| 06/12/2006 1:13 PM |
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| Ruby - Your governing documents seem to be in contradiction. On the one hand it says the by-laws shall be amended, or rescinded by a majority vote of the board of directors, on the other it says that any amendment shall require assent or written consent of 51% of the members. Which one is it, the board decides or 51% of the membership (community at large)? Or is it that the board can only rescind the initial by-laws they adopted but 51% of the community must amend them? But that can't be because it wouldn't be an amendment, it would actually be an adoption of new by-laws. I will say this, a board that has the ability to amend by-laws whether such amendment diminishes owner rights or not, is a power I am glad my association does not expressly have. There are checks and balances in all governments and those that elected the board should be the majority that amends how the board governs. Gerald |
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KennethC
(Alabama)
Posts:27
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| 06/12/2006 1:15 PM |
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Posted By BradP on 06/12/2006 1:12 PM
File it with the correct municipality, we file ours with the local county register of deeds.
WOW! I guess I am going to have to get with the "last man standing" from the previous board and get all the contacts and process/procedures info. |
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BradP
(Kansas)
Posts:1742
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| 06/12/2006 1:17 PM |
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Ken:
You learn as you go, if the previous board did its job all the documentation should be there and it should be easy to see how to do things. However, if they didn't that is why this board is here.
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KennethC
(Alabama)
Posts:27
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| 06/12/2006 1:19 PM |
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Posted By BradP on 06/12/2006 1:17 PM
Ken:
You learn as you go, if the previous board did its job all the documentation should be there and it should be easy to see how to do things. However, if they didn't that is why this board is here.
That is the problem. All but one of the previous board abandoned ship half-way through 2004 and now the new BOD which was elected at the end of May is having to do clean-up. |
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KennethC
(Alabama)
Posts:27
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| 06/12/2006 1:24 PM |
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| Sorry Ruby! I didn't mean to hijack your topic |
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GeraldT1
Posts:0
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| 06/12/2006 1:28 PM |
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| Ken - Your governing documents should outline your powers and duties, as should your state department of community affairs. Because your previous board "abandoned ship", past procudere cannot set precedent going forward. Typcially, the office in which your by-laws were originally recorded must recieve notification of amendments. Err on the side of notification of all board business in advance. What was the process that got you elected to the board? Gerald |
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KennethC
(Alabama)
Posts:27
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| 06/12/2006 1:41 PM |
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Posted By GeraldT1 on 06/12/2006 1:28 PM
Ken - Your governing documents should outline your powers and duties, as should your state department of community affairs. Because your previous board "abandoned ship", past procudere cannot set precedent going forward. Typcially, the office in which your by-laws were originally recorded must recieve notification of amendments. Err on the side of notification of all board business in advance. What was the process that got you elected to the board? Gerald
My wife and I built our first house and during that first year tried to find the HOA. Finally, through our title company I got a name and number. After a couple more weeks We and several of our neighbors(new builds) met with him and discussed what we need to do to get it going again. We announced an open meeting let by the previous member and asked for voluteers for the new board. After that we mailed proxies and after two mailings got the votes we needed. We had our first meeting last months and elected officers and determined billing. We also discussed othere pressing topics such as insurance, maintenance of common area, etc.
So long story short. My wife and I started the calls and as a result of our hard work, I ended up being elected president. Even though I am a newbie, I understand the value of a HOA and want to make sure it is a value to it's members.
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JulieS
(Georgia)
Posts:412
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| 06/13/2006 9:17 AM |
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| Ruby, I agree that the two paragraphs seem contradictory. I would contact an HOA attorney to determine the interpretation and best way to handle this. It really doesn't make sense that the board of directors can amend the covenants and by-laws....seems more that the 51% is correct. |
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RogerB
(Colorado)
Posts:3726
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| 06/13/2006 10:35 AM |
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| The Bylaws and the Articles (of incorporation) are two different documents. There is no discrepency in having different requirements to amend each. |
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Roger Borcherding
Official HOATalk.com Sponsor
DARCO Property Management (Colorado)
(303) 925-0150
*See legal notice below (end of page) or go to www.hoatalk.com/legal |
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GeraldT1
Posts:0
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| 06/13/2006 11:56 AM |
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| RogerB - But Article X is what is being amended, hence my feeling there is a contradiction. Because under RubyB's Article X is AMENDMENTS which states that any amendment to the article shall require assent of 51% at a duly called and convened regular or special meeting. GeraldT1 |
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RogerB
(Colorado)
Posts:3726
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| 06/13/2006 1:06 PM |
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| Gerald, I read Ruby's post differently. I don't see anything about amending Article X of the Declaration. Her question is about amending the By-laws. What she stated is Article X of the Declaration with the requirements for amending the By-laws and, I think, the Articles of incorporation. |
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Roger Borcherding
Official HOATalk.com Sponsor
DARCO Property Management (Colorado)
(303) 925-0150
*See legal notice below (end of page) or go to www.hoatalk.com/legal |
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EricB
(Florida)
Posts:15
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| 06/14/2006 7:42 AM |
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Roger is correct,
I just asked this same question a few day ago and my by-laws says just about the same as Ruby's. It takes a majority to ammend the CC&R but the BOD can ammend the By-laws.
eric |
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SwanB
(Washington)
Posts:194
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| 06/14/2006 10:05 AM |
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Actually, here is another take on this interpretation.
Our bylaws were written in this way and it allows the Board to amend the bylaws because we have one general meeting of the membership a year at which any amendment to the bylaws must be ratified by (the next paragraph in our bylaws) 2/3rd vote of the general membership at the AGM.
This allows the Board to amend a bylaw which is out-of-date with our practices and then have the general membership ratify this, or not at our AGM.
It gives the Board the power to try out some amendments to bylaws that may work or not and then keeps the final power with the general membership. |
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