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Subject: Must Bylaws be Amended or restated if No longer Legal in State
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Author Messages
GerryW1
(Florida)

Posts:29


09/29/2018 9:12 AM  
Hi. We were debating whether our bylaws must be amended or restated if a section no longer complied with recent state HOA LAWS. Specifically, state law (according to attorneys) will no longer allow representational voting (neighborhood member submitting all votes for that neighborhood). Votes are now to be submitted by each individual homeowner. Do we therefore have to spend the money to revise the bylaws, or can we simply send a letter out explaining the new mandated “legal” process, and amend the documents in a year or two without having to rush things for a near term election. Since state and federal law supersede HOA bylaws, seems like that would suffice (at least short term). Thanks much.
RichardP13
(California)

Posts:3059


09/29/2018 9:27 AM  
The answer is NO. The hierarchy of document would take precedence. It would mean having to looking over your shoulder when reviewing document. My suggestion, have one master copy of your documents that changes to current laws are referenced in either your Articles of Incorporation, CCRs or Bylaws.

Lawyers would be in pig heaven if it was required to update documents whenever there are changes to law.
TimB4
(Virginia)

Posts:15999


09/29/2018 9:42 AM  
Posted By GerryW1 on 09/29/2018 9:12 AM

can we simply send a letter out explaining the new mandated “legal” process, and amend the documents in a year or two without having to rush things for a near term election. Since state and federal law supersede HOA bylaws, seems like that would suffice (at least short term). Thanks much.




This would be the best course of action.
GerryW1
(Florida)

Posts:29


09/29/2018 10:01 AM  
Thanks for the answers. We’re really going to be pressed to do anything in a timely manner, and of course want to avoid any election controversy with a new process (for us) undefined in bylaws for the ttime being.
GerryW1
(Florida)

Posts:29


09/29/2018 10:47 AM  
When you say “have one master copy... that changes to current laws are referenced in” - would that entail restating the documents?? And again, if laws change (like our voting issue, and others which have changed in the past 15 years) how often would one have to do this. Not cheap for a small association. Thanks.
RichardP13
(California)

Posts:3059


09/29/2018 11:06 AM  
I have a marked up copy of all my associations governing documents with markup of any changes that could effect these documents. For instance, Action without a Meeting (except in emergency situations, RARE) are not allowed. All Bylaws I have, allow it. Anything having to do with Open Meetings are noted for changes.

If the association is self-managed, then the Secretary should do it, but probably doesn't.

In the U.S. there are over 360,000 HOA's with governing doc. Conservative guess, at least, if not more, have never amended their documents. The initial restating to eliminate declarant/developer language can cost about $5000.00 and then you hope they can get passed, or it is a waste of time and MONEY.
GerryW1
(Florida)

Posts:29


09/29/2018 11:28 AM  
Thanks. Very helpful. We were quoted a lot more for restatement. And yes, if we ever tried an addendum or amendment, we could never pass it now that representative voting is not allowed. The most we ever get back is 40-60% of ballots/votes. We could win powerball, and just need 75-% of votes to colllect, and wouldn’t get it. Resort living with low occupancy.
GenoS
(Florida)

Posts:2435


09/29/2018 12:00 PM  
Gerry, I've never heard this "representational voting" thing before. Can you elaborate on it? Where it's mentioned in the FL Statutes? If our attorney ever used those words I'd ask for chapter and verse. The word "representation" occurs once in the HOA statute, FS 720, and it's not in the context of voting.

Regardless, proxy voting is allowed and for all practical purposes it solves the "I would like you to cast my vote for me" problem.
GerryW1
(Florida)

Posts:29


09/29/2018 12:16 PM  
Representational voting is not uncommon in Florida, and applies to certain master communities with numerous subassociations. With this method, the subassociations (housing or condos) typically elect a voting member who submits all the votes for their subassociation. Kind of like electoral college. It can get complicated, as some bylaws allow the voting member to vote as he wants, some allow only votes as returned, and others allow the voting member to do as he wants with unreturned votes. The purpose was to allow things to get accomplished in a resort community with very low homeowner votes ever returned. This was our bylaw going back to 1992, which was recently disallowed. There is absolutely nothing about representational voting in Florida HOA laws, or almost any state, but they have been allowed forever. Until something untoward happens.
JackE5
(California)

Posts:21


09/29/2018 3:03 PM  
No!!! Federal, State and local law trumps CC&R's They prevail if ever a conflict arises. That was the argument that wasted well over $ 100,000.00 and 4 years in two failed attempts the re-write ours.We needed 67 % affirmative and got less than 20% at the end. And the BOD and attorney were warned at the beginning that apathy would make the attempts fruitless. And it will probably be attempted again.
JenniferG12
(Texas)

Posts:103


09/29/2018 3:43 PM  
We don't have to have owner approval to make changes to comply with state law and it isn't an onerous or expensive process. When I review our governing docs, there are three instances where a simple resolution by the board was done stating an amendment to comply with (in our case) Federal law. Filed at the county, and made part of the governing docs. Easy-peasy.

GerryW1
(Florida)

Posts:29


09/29/2018 6:31 PM  
Thanks for additional comments. Will be much easier with board only handling the compliance with state rules.
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Forums > Homeowner Association > HOA Discussions > Must Bylaws be Amended or restated if No longer Legal in State



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