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| Providing Community Association Insurance for over 25 years: D&O Liability, Crime Products, Umbrella Coverage and Property Manager's Errors & Omissions Liability. |
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ValerieC
(North Carolina)
Posts:24
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| 07/31/2006 6:36 AM |
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| In the Bylaws, if an article says so and so "may" do something, am I correct that that implies optional, whereas if it says "shall" do something, that is a required obligation? |
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CharlesW1
(Georgia)
Posts:821
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| 07/31/2006 6:47 AM |
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ValerieC- Good question! I have read my CC&Rs many times. You need to first define the majority of what you are reading to even be able to understand any of it. I have noticed a majority of the by-laws are written to be interpreted in every situation. It’s not clear cut, this or that. It’s more like “may”, “if” the list goes on!
I’d be interested to read what other advice you receive on this post.
Chuck W.
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Charles E. Wafer Jr. |
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WilliamT
(Arizona)
Posts:489
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| 07/31/2006 6:52 AM |
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Posted By ValerieC on 07/31/2006 6:36 AM
In the Bylaws, if an article says so and so "may" do something, am I correct that that implies optional, whereas if it says "shall" do something, that is a required obligation?
That's the way I've always understood the interpretation.
Bill |
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RogerB
(Colorado)
Posts:3725
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| 07/31/2006 7:11 AM |
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| Yes Valerie, and this is VERY BIG DIFFERENCE. I recently recommended and helped an HOA amend their Declaration just to change one word - from may to shall. |
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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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ValerieC
(North Carolina)
Posts:24
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| 07/31/2006 8:04 AM |
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| Thank you all for your quick responses and clear answer to my question. I wish someone, like Roger, would come and rewrite our documents! Sure could make life easier for all! Thanks again. |
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GeraldT1
Posts:0
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| 07/31/2006 8:42 AM |
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ValerieC,
May means "can", or "the ability to", shall means "must" or "obligation to". Both are appropriate powers of the board, since there are times when a board "may" have the authority to excercise it's judgement. Depending on the subject matter, it may be in the best interests of the membership as a collective to have a board that can excersise it's judgement, in other words a board that may do something is better than a board that must.
An amendment from "may" to "shall" is troubling to me if it comes from one or two owners, and or a board of directors. That would be like the President re-writing the constitution.
Best of success!!
GeraldT1
NNJ
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GeraldT1
Posts:0
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| 07/31/2006 4:01 PM |
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ValerieC,
In furtherance of your post I would like to clarify my reply. In some by-law instances, a power that "shall" be excerised is better than one that "may" be. For example, do you have a by-law article that states, all board meetings, except conferences or working sessions at which no binding votes are to be taken, or of a legal private matter "shall" be open to attendance by all owners? If the by-law said "may be open..." then the board can exclude which could be detrimental for an open system. The point is that there are consequences to changing "may" to "shall" and vice versa.
Best of success!!
GeraldT1
NNJ |
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General Legal Notice: The content of forum messages are from the posting member and have not been reviewed nor endorsed by HOATalk.com. Messages posted by HOATalk or other members are for informational purposes only, are not legal or professional advice and do not constitute an attorney-client relationship. Readers should not act upon this information without seeking professional counsel. HOATalk is not a licensed attorney, CPA, tax advisor, financial advisor or any other licensed professional. HOATalk accepts ads from sponsors but does not verify sponsor qualifications nor endorse/guarantee any sponsor's product or service.
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