Cannot locate Bylaws

We are a very small community (7 properties) that filed as a Non-profit Corporation in 1992. We have been released by the developer long ago and all of the original property owners are gone. We are considered an active corporation with the state of Florida. We have our CC&Rs recorded with the county. We have been operating fairly casually until recently. It was brought to our attention that we do not have any bylaws which govern the rules and regulation of the membership. I checked with all of the property owners and nobody has ever had a copy. I have checked with the county and there were never any bylaws recorded for the home owners association. What do we do? We are in need to take legal action against a property owner and to elect new officers and we are in conflict. My question to you is, in absense of our bylaws can we revert to the Florida Statute, Title XL, Chapter 720 Homeowners' Associations bylaws and the rules and regulations governing homeowners associations if it is not in conflict with the existing CC&Rs? Can we follow those bylaws until the membership adopts and votes on our bylaws? Do you know if the state of Florida requires the HOAs to file their bylaws with the county? Thank you very much for your time.

Janet,

Let me try to address your questions.

‘It was brought to our attention that we do not have any bylaws which govern the rules and regulation of the membership.’

By-laws do not govern the rules and reculations of the membership. They govern the management of the Associations. Rules and Regulations are tied to the Covenants.

‘We are in need to take legal action against a property owner and to elect new officers and we are in conflict.’

In conflict with what?

'My question to you is, in absense of our bylaws can we revert to the Florida Statute, Title XL, Chapter 720 Homeowners' Associations bylaws and the rules and regulations governing homeowners associations if it is not in conflict with the existing CC&Rs?

I do not believe you can. Plus the owners probably have no clue what Chapter 720 is. And, by the way what is ‘Title XL’?

‘Can we follow those bylaws until the membership adopts and votes on our bylaws?

Again, I do not think so. Chapter 720 is not is not a substitute for the By-laws.

Do you know if the state of Florida requires the HOAs to file their bylaws with the county?’

Here is the answer:

Chapter 720.303 Association powers and duties; meetings of board; official records; budgets; financial reporting; association funds; recalls.—
(1) POWERS AND DUTIES.—An association which operates a community as defined in s. 720.301, must be operated by an association that is a Florida corporation. After October 1, 1995, the association must be incorporated and the initial governing documents must be recorded in the official records of the county in which the community is located.

Janet,

First, the President is wrong. The mandatory payments of all assessments are spelled out in the covenants which go with the land. The covenants rule. In other words, you are still HOA governed by the covenants and the Articles of Incorporation. The By-laws only provide for a procedure how the assessments are collected. Clearly, the Board adopted ‘informal ’ procedures for collecting assessments, etc. but again, if there are copies of ‘minutes’ of all meetings these become official documents of the Association. Do these minutes exist?

Second, the President is simply stealing money from the Corporation. If he does not return the money, you may have to sue him. Any judge would rule in your favor.

‘So here is my question...in absence of the bylaws can we utilize the state statutes in Chapter 720 as guidelines for the meeting (days of notice, what constitutes a quorum, etc)? ‘

Yes, you should follow those procedures to call the meeting and vote. You need 30% (in person or by proxy) to constitute a quorum. However, I would try to have a copy of the By-laws prepared for the next members’ meeting if at all possible. There are plenty of boilerplates you can find on the web. In your instance, the By-laws could be a very simple document, tailored to your needs and as long as it is not in conflict with Chapter 617 and 720 and your Articles of Incorporation you will be ok. This forum can also look at it and give you independent opinions, no doubt.

‘Next question is if a property is in foreclosure do they get to vote as a member of the association? By the way, they have never paid their dues either. ‘

Well, yes and no. The Board can vote to suspend voting rights of all delinquent owners (see Chapter 720).

'We only have 7 properties in this association. Two are in foreclosure, one of which is hiding from authorities and cannot be found, one is the prior president who is in arrears and the remaining four live out of state (undeveloped properties). We will have a quorum if the remainder call in. In addition we will have their proxy vote. '

So, you could only end up with 4 voting members? If true, the quorum would be 2 members and a majority of the membership would be 3 members. Otherwise, if you allow all 7 members to vote, the quorum would be 3 members and the majority of the membership would be 4 members. Am not sure, what you mean by ‘if the remainder call in’.

‘This really has become a nightmare for us. Whatever bit of practical advice you can offer would be helpful. ‘

I bet it is a nightmare. Do you have a recorded or certified copy of the Articles of Incorporation? If not, please contact the Secretary of state (link below) and get a copy. It is also possible that this document includes most of the procedures otherwise spelled out in the By-laws or the By-laws are also recorded in Tallahassee. It does sometimes happen.

http://sunbiz.org/search.html

Minutes are not recorded in the county.

'Because several of the properties are undeveloped and the owners live out of town/state, we usually get them on the phone during the association meeting so that they can voice their opinion and vote verbally.'

The members can participate in all meetings by phone, if the By-laws allow it. But, when it comes to voting on important issues (such as amendments to documents, electing the board members) I would go with absentee ballots or proxies, although I prefer ballots. Again, the voting procedure should be spelled out in your By-laws.

Not all Articles can be viewed in the PDF format. Yes, do get a copy and also ask if the By-laws are there. I would also try to contact the Developer and ask him if he remembers drafting the By-laws before the turnover.. but it is not important.

What is however important to have is the legal description of the subdivision plat as described in your deed. You should have a copy of that also.

Thank you for all of the information. This forum has proved helpful.
I have tried to contact the office of the attorney who I think drafted all of the governing documents for the association but it appears they are no longer in business.

I called the state to see if I could get a copy of the articles of incorporation and they referred me to the county. I called the county and they said they do not have anything recorded as a seperate document for the articles of incorporation. However, they did note that our CC&Rs have articles within the same document. I am assuming now that they are a combined document?

We do have a legal description of the subdivision plat as described in your deed. That is on file with the county.

The only thing we seem to be missing are the bylaws. So I guess what we will do is revert to the state statute for guidelines until we vote to get our own bylaws reestablished.

Yes, I have gone to the public records online for our county and they have several documents recorded and imaged for viewing online for our community but the only thing recorded for us is the CC&R's and it looks like the articles of incorporation within the same document. All documents pertaining to the developer I guess have been discarded over the years. We are relatively new to the community and others did not keep good records. So without the developer and the original attorney I'm not sure how to track down the bylaws.

Yes, we have the attorneys name and we are actively looking to find him and the records. So, wish me luck.

Regarding the missing bylaws: based on my limited experience in Arizona, when you purchased your property you should have been given copies of all the community documents. Have you checked the packet of papers from your closing to see if you have a copy of the bylaws?

Janet,
Our Association was in much of the same situation as yours. I filed a publice records request with the City which required an Association to be formed and all governing documents to be reviewed with the City Attorney prior to the subdivision receiving approval for development. I was able to locate alot of interesting things through the City that were never required to be recorded with the county. Good Luck.

Carolyn