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Subject: resolution vs amend
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Author Messages
BarbaraD6
(Florida)

Posts:347


05/20/2009 7:19 AM  
We need 67% of owners to change any bylaws. Other boards do "resolutions" since they can't get enough owners to vote on anything. Can anyone shed light on "resolutions"?
thanks
Barbara
RobertR1
(South Carolina)

Posts:5164


05/20/2009 7:55 AM  
Barbara,
Not much to explain, IMHO. Boards use resolutions for exactly the reasons you describe. Most continue this practice until someone questions their authority. If a resolution contradicts a by-law, then it is not a resolution.

This may help: http://managementhelp.org/boards/boards.htm

Got this by Googling Board Resolutions.

Anytime a board votes on anything it should be noted in the minutes and I doubt it would be improper to preface this word with something like: By vote of 4 to 1 the board resolves to change the Pool rule hours from 8 AM to 4PM. The new hours will be from 5 AM to 3AM, beginning 24 May 2009. Whatever.

The Board can not change the document or the provisions of the documents. I am sure there may be specific unusual conditions provided in some documents.......so in general.

Intent has a lot to do with this also. If the Board does anything to ignore, or avoid the conditions as written in the documents, they are on shaky ground. Some documents have a catch all clause that actually gives the Board the right to do whatever they decide......if it is in the best interests of the association. Routine business would not be considered enough justification, in other words, they must have a compelling reason.

Now, what happens if they do. Certainly many many Board operate this way to some degree and I would guess the majority of them, if challenged could slip by a judge if suit were filed. But, surprisingly, the evil is not in a particular act, the evil is in the practice of doing it, and it will eventually lead to BIG problems, depending on what is done and who is pressing the suit.

If your Board makes this a practice, get some references (such as I included) and show them the differences between a Resolution and an amendment, and I am sure you will run across the penalties of wrongdoing. Those may well be in your documents and certainly in the Florida statute or state non-profit regulations.
MaryA1


Posts:0


05/20/2009 8:11 AM  
Barbara,

A resolution is pretty much like a board-adopted rule except that it appears to be more formal. However, a resolution CANNOT amend the bylaws. An amendment changes something; therefore a change to the bylaws must be accomplished in the form of an amendment. A resolution cannot change a provision of the bylaws.
BarbaraD6
(Florida)

Posts:347


05/21/2009 9:10 AM  
Robert and Mary,
Thanks for explaining this issue. I see how a board can use this to do whatever it is that they want to do.
Barbara
JohnK3
(Pennsylvania)

Posts:967


05/21/2009 9:14 AM  
Posted By BarbaraD6 on 05/21/2009 9:10 AM
Robert and Mary,
Thanks for explaining this issue. I see how a board can use this to do whatever it is that they want to do.
Barbara




Barb,

No, they can't. The BOD can alter existing rules or create new ones ONLY as long as they are in keeping with/don't conflict with the ByLaws and CCRs.
BarbaraD6
(Florida)

Posts:347


05/21/2009 9:27 AM  
Hi John,
We can't alter or add new bylaws without a vote of 67% of owners. Their has been "community standards" for a couple of years.
- Flowers must be put in pots
- you may display 1 decorative flag in good condition
- enclosed porch must use black screening and white alum
etc
I think these might be considered resolutions.
Barbara
MicheleD
(Kentucky)

Posts:4491


05/21/2009 9:41 AM  
Posted By BarbaraD6 on 05/21/2009 9:27 AM
Hi John,
We can't alter or add new bylaws without a vote of 67% of owners. Their has been "community standards" for a couple of years.
- Flowers must be put in pots
- you may display 1 decorative flag in good condition
- enclosed porch must use black screening and white alum
etc
I think these might be considered resolutions.
Barbara





Barbara:

It really depends on what your GOVERNING documents say about those things.

If your GOVERNING documents DON'T allow for the board or ARCH Committee to approve landscaping, then they can't pass a resolution saying flowers must be put in pots. In other words, our documents to NOT address landscaping at all, other than to say that lots must be maintained. So we could not create a resolution restricting flowers to being in pots.

If your GOVERNING documents DON'T address flags, decorative or otherwise, then I don't think the board can pass a resolution prohibiting or placing restrictions on them.

Arch components are somewhat different. IF your GOVERNING documents allow you to control the look and/or color of exterior components, then you board CAN pass a resolution specifying those guidelines. However, if your governing documents do not allow for that sort of control, then they cannot pass a resolution restricting or controlling exterior colors or materials.

MaryA1


Posts:0


05/21/2009 9:49 AM  
Barbara,

I hope your board isn't doing what other boards do! You know what your bylaws say; however, you don't know what the bylaws of other boards say, so they may be doing something they have the authority to do. But, since you say your bylaws require a vote of the members to amend, the board CANNOT pass a resolution to get around amending the bylaws. This would be in violation of the bylaws!! A resolution is the same as a rule, so if the board has the authority to adopt rules then they can do that. However that resolution/rule cannot be in violation of any of your gov docs. That resolution/rule can only clarify an issue that is already in the bylaws or CCRs -- it cannot CHANGE, EXPAND or ALTER a bylaws or CCRs provision. Your board may have no other recourse but to ask for an amendment to the bylaws. That's the way it is and that's the way the board has to live with it!!
DorothyO
(Washington)

Posts:269


05/21/2009 2:46 PM  
Mary, et al,

My GDRC (Governing Documents Review Committee) would like to add provisions for three things: 1) appeal process for ARC decision dissatisfaction, 2) appeal process for covenant violation and 3) three written notices of covenant violation, none of which we have anywhere in any of our governing documents or Minutes.

1) ARC Appeal:

Since the procedure for architectural review is covered in both the CC&R's and Bylaws, although, in less detail in the Bylaws, more of a reference to the CC&R's, would an appeals procedure be added in both of these places as well, in the same format, with the Bylaws referencing the CC&R's? Or, since it is not a requirement, nor a rule, regulation or restriction, rather an option, could it be handled as a RESOLUTION?

2) Covenant violation and enforcement and Appeal:

We have text covering violation in the Enforcement Section of the CC&R's which deals with lawsuits and liens only for covenant violations, and we have text dealing with enforcement in the Bylaws saying only the Board has the power and duty to enforce the CC&R's. We would like to have somewhere in writing the following: "Covenant Enforcement Procedure: Three written notices will be issues by the Board for any repeated and unresolved covenant violation. It is the homeowner's responsibility to comply or appeal to the Board before the third and final written notice. In the event of non-compliance enforcement will proceed in accordance with CC&R Section 20."

Thank you!

Dorothy






MaryA1


Posts:0


05/21/2009 4:12 PM  
Dorothy,

First of all if your CCRs give the BOD or the A/C committee the authority to adopt rules by which the committee operates, then the board or the A/C committee can add these provisions to those rules. The ARC Appeal process and covenant violation and enforcement appeal can be a board-adopted rule or a resolution. I don't think it's necessary to amend the Bylaws or CCRs to add these provisions. However, if the board feels there should be an amendment, I believe the amendment would be to the CCRs for both provisions, since the bylaws only reference the CCRs.
DorothyO
(Washington)

Posts:269


05/21/2009 6:35 PM  
Mary,
Thank you once again for your clear response. It's how I was intuitively thinking, but it is always good to have someone with more experience than I to affirm that. What a valuable site!

Dorothy
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Forums > Homeowner Association > HOA Discussions > resolution vs amend



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