I've reconsider my position...

Started by GreggK2 • 16 replies • 1546 views

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GreggK2 (Kansas)
Posts: 86

Posted:

...and will hold a vote to replace the vacancies of officers now that I am the last man standing. Unrelated, I was jsut sent an email from a home owner about some new verbiage in our bylaws and I am not sure how to properly explain what this lines means:

SECTION 7. VOTING. The record date shall be as of the close of business on the day next preceding the date on which the meeting shall be held.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Gregg,

Legalize was certainly used.

Since you stated that you did a lot (if not all) of the rewrite for the Bylaws, how would you say that section in simple language?

GreggK2 (Kansas)
Posts: 86

Posted:

Yeah...I'm just trying to explain what that line means because it is going right over my head.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Without seeing the whole context, my understanding would be:

A vote [of the membership?] will be recorded at the close of business on the day following the vote.

Mind you, I think that this is silly to even have within the documents, but again, I haven't seen the whole document to obtain full context.

NpS (Pennsylvania)
Posts: 4,216

Posted:

I could shuffle the words to make it into a readable sentence.

"The record date shall be as of the close of business on the day preceding the date on which the next meeting shall be held."

Which is kind of lame - Why should the official date of the change be put off til the day before the next meeting?

Sikubali jukumu. Read all posts at your own risk.

GreggK2 (Kansas)
Posts: 86

Posted:

Here is the entire paragraph:

SECTION 7. VOTING. The record date shall be as of the close of business on the day next preceding the date on which the meeting shall be held. Only those members who are current in the payment of their annual assessments shall be entitled to vote at the annual meetings or at any special meetings which may be called. Regardless of the ownership of a lot, whether it is owned by a corporation or by individuals, whether it is owned in joint tenancy, tenancy in common or singly, each lot which has had all assessments paid shall be entitled to one (1) and only one vote. In the event a member owns and has paid all assessments on more than one lot, he shall be entitled to a number of votes equal to the number of lots on which he has paid all assessments.

It's the first line that is throwing me off.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Ahh,

Now I see the context and revise my understanding.

This section is saying that only members who are current by the close of business the day prior to the meeting, may vote.

that one sentence is specifying that the recording of whom may vote shall be at the close of business the day prior to the meeting.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By TimB4 on 07/24/2016 11:39 AM
Ahh,

Now I see the context and revise my understanding.

This section is saying that only members who are current by the close of business the day prior to the meeting, may vote.

that one sentence is specifying that the recording of whom may vote shall be at the close of business the day prior to the meeting.

Sounds right.

Sikubali jukumu. Read all posts at your own risk.

KerryL1 (California)
Posts: 14,550

Posted:

"Record date" so far as I understand it, means the date that a new Owner is on record with the county as holding title as, well, actually being an owner. The phrase often is Record Date of Ownership.

So, our Bylaws don't have a record date that we must use except that it must be within 15 days of an election. The Board votes every year that the record date is 15 days prior to the election.

Gregg, won't you be replacing directors? And then the new directors will choose officer?

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

The confusion, in my opinion, comes from the use of "next meeting" which, I believe, means the next annual meeting or a special meeting of the membership.

DanaT (Tennessee)
Posts: 214

Posted:

Quote:

Posted By GreggK2 on 07/24/2016 11:14 AM
...and will hold a vote to replace the vacancies of officers now that I am the last man standing. Unrelated, I was jsut sent an email from a home owner about some new verbiage in our bylaws and I am not sure how to properly explain what this lines means:

SECTION 7. VOTING. The record date shall be as of the close of business on the day next preceding the date on which the meeting shall be held.

GOOD MAN! You are never wrong, when doing right!

GreggK2 (Kansas)
Posts: 86

Posted:

I guess I just needed to sleep on it. To be honest, I suppose my "anxiety" over the matter comes from knowing that a handful of people can be so disruptive and yet we've had many people support us privately. I was always hoping that someone, other than me, would stand up to the people who want to overthrow the board. I can only do so much on my own and I think our current voting process is representative of how uninvolved home owners can be. We found that our bylaws conflicted with new Kansas statutes from 2011 so we had our HOA attorney update everything. We then sent it out for a vote. After 2 weeks, we've received only 30 of 114 ballots back to either approve or deny the changes. If we don't get a minimum of 76 back in by a week from today, it means we are to operate under the old, non-compliant bylaws and I'm shaking my head as to why the home owners would allow it. Hell, we even gave them self addressed stamped envelopes to return their YES/NO ballots in. Is it really that tough to check a box, fold the ballot and mail it back in? Everyone wanted the changes to be made and now that we are trying to make the changes, very few are allowing it to go through. If the new bylaws fail, months of worth to rewrite them, and the money to have the attorney do it, will have all been wasted.

I'm prepared to let some of these "really smart people" step in and take this over so I can walk away knowing I did the best I could to right these things.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By GreggK2 on 07/24/2016 11:37 AM
Here is the entire paragraph:

SECTION 7. VOTING. The record date shall be as of the close of business on the day next preceding the date on which the meeting shall be held. Only those members who are current in the payment of their annual assessments shall be entitled to vote at the annual meetings or at any special meetings which may be called. Regardless of the ownership of a lot, whether it is owned by a corporation or by individuals, whether it is owned in joint tenancy, tenancy in common or singly, each lot which has had all assessments paid shall be entitled to one (1) and only one vote. In the event a member owns and has paid all assessments on more than one lot, he shall be entitled to a number of votes equal to the number of lots on which he has paid all assessments.

It's the first line that is throwing me off.

Examples:

Meeting date is Sunday, the 15th. Close of business is 5:00 PM Friday the 13th.

1. Tim is the owner of record of his home and is shown as paid up and current in his assessments as of the closing time. He is eligible to cast a vote at the meeting.

2. John is current on his assessments but sells his home on Saturday the 14th to Kerry. John may cast a vote as he is the owner of record on the closing date. Kerry was not the owner of record on the closing date and may not vote.

3. Larry is delinquent in paying his assessments. He pays his assessments online on Saturday the 14th. Because he was not paid up as of the close of business on Friday the 13th, he may not vote on Sunday.

JonD1
Posts: 2,350

Posted:

Quote:

Posted By GreggK2 on 07/24/2016 12:25 PM
I guess I just needed to sleep on it. To be honest, I suppose my "anxiety" over the matter comes from knowing that a handful of people can be so disruptive and yet we've had many people support us privately. I was always hoping that someone, other than me, would stand up to the people who want to overthrow the board. I can only do so much on my own and I think our current voting process is representative of how uninvolved home owners can be. We found that our bylaws conflicted with new Kansas statutes from 2011 so we had our HOA attorney update everything. We then sent it out for a vote. After 2 weeks, we've received only 30 of 114 ballots back to either approve or deny the changes. If we don't get a minimum of 76 back in by a week from today, it means we are to operate under the old, non-compliant bylaws and I'm shaking my head as to why the home owners would allow it. Hell, we even gave them self addressed stamped envelopes to return their YES/NO ballots in. Is it really that tough to check a box, fold the ballot and mail it back in? Everyone wanted the changes to be made and now that we are trying to make the changes, very few are allowing it to go through. If the new bylaws fail, months of worth to rewrite them, and the money to have the attorney do it, will have all been wasted.

I'm prepared to let some of these "really smart people" step in and take this over so I can walk away knowing I did the best I could to right these things.

I have a few comments. Why are you now holding a vote to fill the board vacancies?

Is there anyone you could work with willing to serve?

As the last remains board member why could you not appoint replacements?

And just what notification went out with the ballots? We're the owners informed as to why their votes were crucial in this matter?
Are any phone calls to those not having returned their ballots been made? Any notices requesting owners to please return their ballots been posted?
Any efforts at all to push the owners to vote?

The one main glaring problem I see is lack of communication and information your board has provided owners. You just can't rely on hope they will do what's needed. Short of holding a gun to their heads anything else goes.

YOU MUST OBTAIN SUPPORT FROM THE OWNERS. WHATEVER THAT TAKES. FOR AS LONG AS IT IS NEEDED.
if you need 44 more votes make 100 phone calls. Print notices and post them on the mailboxes. This is not a spectator sport.
Someone needs to campaign and work. Hoping these votes show up on their own is foolishness.

KerryL1 (California)
Posts: 14,550

Posted:

Many HOA Boards, Gregg, extend the period for voting, but the board has to vote on that extension. As you attorney more about this.

In addition, I believe that you automatically may comply with the 2011 statutes withOUT amending your Bylaws. Maybe KS is different, but I 'd want ty the a HOA attorney to show you in writing, e.g., a statute, that says the Ownership must vote to amend their Bylaws to comply with the law. The law, should trump your out of date Bylaws.

But I've just dumped more work on you and you don't seem to have any help, which is a shame. Can't you ask some of your "private" supporters to stand up for you & help out?

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By GreggK2 on 07/24/2016 12:25 PM

We found that our bylaws conflicted with new Kansas statutes from 2011 so we had our HOA attorney update everything. We then sent it out for a vote. After 2 weeks, we've received only 30 of 114 ballots back to either approve or deny the changes. If we don't get a minimum of 76 back in by a week from today, it means we are to operate under the old, non-compliant bylaws

Not necessarily.

It will depend on the language used within the statute.

When a conflict between two documents exist, the higher precedent document controls (must be complied with) unless that higher document defers control to the lower document.

Examples of deferring control are:

Unless otherwise provided in the [name of document] . . .

unless the bylaws otherwise require, . . .

except as may be otherwise provided in [name of document] . . .

Unless otherwise restricted by the [name of document] . . .

Also watch out for something that is suggestive rather then required:

The corporation may . . . is suggestive

The inspectors shall . . . is a requirement

The board of directors may . . . is suggestive

The board of directors must . . . is a requirement

JoyceR2 (Virginia)
Posts: 156

Posted:

I agree. The By-Laws mirror the law and the association members can not vote this down.

Got this somewhere:
Hierarchy The hierarchy is useful because it reflects the levels of prevailing authority and avoidance of conflict when amending or rescinding any law or rule. In other words, a law or policy must comply with those at a higher level and cannot be amended or rescinded if the result conflicts with a law or rule that exists higher up the hierarchy. Examples: A federal law cannot be changed by the state, a state law cannot be amended by a municipality, and a bylaws requirement cannot be amended or rescinded by a community policy, rule, or resolution. This hierarchy must be kept in mind when making changes and, in particular, when writing community policies, rules, and regulations.

All laws, community policies, rules, and regulations must comply with all of the laws and documents above them in the hierarchy. For example, the declaration of a 20-year-old community association provides for imposing a $5 one-time fee for late or missed payments of maintenance fees. The board does not have the authority to change the late fee without asking the owners to approve an amendment to the declaration, the process for which is usually described within the declaration itself.

But no I do not know Kansas laws

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