Who Approves ByLaws? > HOA Forum

Unanswered

Active Topics

Forums

Forums > Homeowner Association > HOA Discussions

Subject: Who Approves ByLaws?

Prev Next

You are not authorized to post a reply.

Author

Messages

EthelW
(North Carolina)

Posts:3

09/23/2008 10:06 AM
We are the first Board of Directors of our HOA, which was just turned over to us in July, and are in the process of drafting ByLaws. My question is, does the HOA membership need to approve the ByLaws? I have found references in several sets of ByLaws saying the membership has to approve amendments, so to me that implies they approved the original document---but I don't want to just assume that is so. I checked out 2 different books on HOA'S and neither answered this question. Thank you, Ethel

DonnaS
(Tennessee)

Posts:2946

09/23/2008 10:18 AM
Ethel, Your very own documents will tell you about approving any Covenants and Bylaws by a vote of the membership. You should have a set of Articles of Inc and that would be the place to start . You said that you are in the process of drafting Bylaws.. You do not have any from the Developer? A general HOA book cannot define how your association must adopt any documents that you change.

JohnK3
(Pennsylvania)

Posts:565

09/23/2008 10:24 AM
I agree with Donna. Your CCRs (Declarations) probably mention that your ByLaws will act as your governing document, and typically, the ByLaws require at least a majority of Membership to amend them. It would be unusual, however, to have CCRs on file without at least skeleton ByLaws. Are you sure they don't exist already? Check with your builder or Property Manager (if you have one).

EthelW
(North Carolina)

Posts:3

09/23/2008 11:14 AM
Well, thanks guys, but I hate to tell you that (1) the Articles say nothing about the ByLaws or much else for that matter, (2) the Covenants have a lot to say about structures, assessments, and quorums, but nada about ByLaws, and (3) the developer's attorney says there are no existing ByLaws. Oh how we wish there were! It's not like as a new Board, we don't have plenty else to do. Our plan, however, is to work together to draft them, have them reviewed by legal counsel, and presumably to submit them to the membership for approval. I would assume we will mail them to the members for review, then call an HOA meeting for a vote. We have looked over many ByLaws we found online, and some were very lengthy, while others were more concise. Any advice on that aspect?

JohnK3
(Pennsylvania)

Posts:565

09/23/2008 11:29 AM
Ethel, Our ByLaws are 17 pages long. If you've located templates on line, why not start with the longer set and winnow out what doesn't suit your needs as you see them. Then send them to Membership, call a meeting and see if you can get approval. You can always amend them later when things start sorting out. Good luck, and good for you and your new Board.

DonnaS
(Tennessee)

Posts:2946

09/23/2008 12:49 PM
Ethel, You absolutely should go to the North Carolina Laws, codes or Statutes on HOAs. There you will find some information on how the Association must do a membership vote. A HOA meeting will not be how to vote on acceptance of your newly written Bylaws. Every member of the Assoc. must have a chance to vote on any proposed documents and that must be done per a written ballot, not a voice or show of hands. Meetings normally do not show much interest and few people show up. It must be a ballot vote and proper notification also is a must. It is very important that before you present these new Bylaws, that they do get reviewed by legal counsul for proper wording. If Bylaws are written well and cover all of the issues of your association, don't expect less than 15 to 20 pages.

RogerB
(Colorado)

Posts:3725

09/23/2008 1:02 PM
Posted By EthelW on 09/23/2008 10:06 AM We are the first Board of Directors of our HOA, which was just turned over to us in July, and are in the process of drafting ByLaws. My question is, does the HOA membership need to approve the ByLaws? I have found references in several sets of ByLaws saying the membership has to approve amendments, so to me that implies they approved the original document---but I don't want to just assume that is so. I checked out 2 different books on HOA'S and neither answered this question. Thank you, Ethel Ethel, if your HOA is incorporated you can go to the North Carolina Non Profit Act for assistance. Your HOA must have Bylaws in order to have a Board of Directors. Without Bylaws there is no Board, no HOA, and you can not be incorporated. If this is the case, start by holding an initial meeting of owners to form an HOA. Elect temporary officers and a Bylaws committee to draft the Bylaws. At a second meeting of owners you can approve the Bylaws and then elect Board members in accordance with the approved Bylaws. Once this is done the Board can elect officers and file to become incorporated.

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

SusanW1
(Michigan)

Posts:2316

09/23/2008 2:04 PM
Without Bylaws there is no Board, no HOA, and you can not be incorporated. I'm not sure this is true. The filed Articles of Incorporation have officers of the corporation sign the documents. This is not necessarity the same as the officers of the Board. Sometimes those few people draft bylaws and pass them, since the bylaws now define a "member". The members are given power to amend the bylaws. Those first steps often are awkward.

DonnaS
(Tennessee)

Posts:2946

09/23/2008 2:06 PM
ETHEL, What documents do you have --if any-- from the Developer? There has to be something given to you in the beginning. This would help us greatly.

KirkW1
(Texas)

Posts:1190

09/23/2008 4:55 PM
To be a legal corporation your organization must have by-laws. Normally the bylaws are filed at the same time as the articles of incorporation. But of course that doesn't mean that your developer bothered to find out what he was doing before he did it. Just to be sure, I would go back and review where the articles of incorperation were filed and the covenants were filed to be sure that bylaws were not filed at the same time. Short of that, I would speak with an attorney. If all else fails, I would be inclined to put the bylaws into effect by means of an amendment to the covenants.

MaryA1
(Arizona)

Posts:2489

09/24/2008 6:51 AM
Ethel, Different states have different laws! In AZ the bylaws do not have to be filed with the articles of inc.but state law requires the BOD to adopt a set of bylaws. AZ has state statutes outlining what info should be contained in the articles of inc and the bylaws. I would suggest checking out your state laws. Also check with the dept that is resp. for incorporation to find out if sample bylaws are available. In many instances the BOD had sole authority to amend the bylaws but I have heard of some bylaws which require a vote of the members. I believe that is a determination that can be made by the originator of the bylaws. Although I do find it unusual that the developer did not prepare a set of bylaws, I'm thinking perhaps he felt it should be left up to the BOD once the members took control of the assn. Your state, like AZ, may not require the bylaws be filed with the articles of inc.

MaryA1
(Arizona)

Posts:2489

09/24/2008 6:57 AM
Posted By KirkW1 on 09/23/2008 4:55 PM To be a legal corporation your organization must have by-laws. Normally the bylaws are filed at the same time as the articles of incorporation. But of course that doesn't mean that your developer bothered to find out what he was doing before he did it. Just to be sure, I would go back and review where the articles of incorperation were filed and the covenants were filed to be sure that bylaws were not filed at the same time. Short of that, I would speak with an attorney. If all else fails, I would be inclined to put the bylaws into effect by means of an amendment to the covenants. Kirk, Why would you suggest attaching the bylaws to the CCRs through an amendment? I've never heard of such a thing. IMO, all that needs to be done is for the BOD to adopt a set of bylaws which can be done by resolution. In many states the bylaws are not even required to be recorded. In AZ they are not required to be filed along with the articles of incorp. either. The CCRs are the only gov. doc which is required to be recorded.

EthelW
(North Carolina)

Posts:3

09/24/2008 7:26 PM
Thanks, all of you, for your thoughtful replies. I can see opinions vary according to what your experiences have been and perhaps the states you live in. We are located in North Carolina, and the attorney who conducted our turnover meeting stated that there is no legal requirement for bylaws to be filed, even during the incorporation process. I do think to amend the Covenants here would require an Act of God and is hardly a task a novice Board would undertake. This discussion has made it very clear to me that (a) we do need ByLaws ASAP and (b) while we can probably produce them ourselves, we should have an attorney to not only review them, but guide us through the approval process. I appreciate your taking the time to respond to my question.

You are not authorized to post a reply.

Forums > Homeowner Association > HOA Discussions > Who Approves ByLaws?