Amending By-laws

Started by EvaM1 • 12 replies • 3732 views

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EvaM1 (Florida)
Posts: 190

Posted:

Please can you help me with the following. Our bylaws state as follows:

'B. A resolution adopting a proposed amendment may be proposed by either the Board of Directors of the Association or by the members of the Association. Directors and members not present in person or by proxy at the meeting considering the amendment may express their approval in writing provided such approval is delivered to the Secretary at or prior to the meeting. Except as elsewhere provided such approval must be by:

1. Not less than two-thirds (2/3) of the entire membership of the Board of Directors and not less than fifty one (51%) of the votes of the membership of the Association voting in person or by proxy; or

2. Not less than sixty percent (60%) of the votes of the membership voting in person or by proxy; or

3. Until the first election of directors, by all of the directors. '
_________

May I ask what does the second sentence in the first paragraph really say to you? Can a member just hand-in a signed letter approving the proposed amendment? No proxy is necessary?
Also, one option to amend the bylaws requires 60% of the votes and another one only the vote by the newly elected board? Am I reading this correctly?
Also, can a board member vote by proxy? Thank you for your help

AnnJ2 (Colorado)
Posts: 120

Posted:

Without the full set of documents this sounds confusing. At best I would say that the documents are providing for a directed proxy in the mention of handing in a vote. The act of handing in a vote could in effect be taken as the same as a proxy with a named proxyholder. If you vote you are represented but only as to the item for which you voted. On anything else you could not count the vote as a proxy.

SusanW1 (Michigan)
Posts: 5,202

Posted:

This looks like this paragraph is just an approval for a PROPOSED amendment, NOT the passing of the amendment.

Do you documents say anything about the threshhold vote for the actual amendment.

Your bylaws need an overview ASAP. This is one of most confusing paragraphs I have even seen.

EvaM1 (Florida)
Posts: 190

Posted:

ARTICLE II. MEMBERS’ MEETING

I. VOTING
1. At any meeting of members, the owners of each townhouse unit shall be entitled to cast one vote as the owner of a townhouse unit unless the decision to be made is elsewhere required to be determined in another matter.
2. Votes can be cast in person or by proxy. A proxy must be designated in writing by any person entitled to vote, and shall be valid only for the particular meeting designated in the proxy. It must be filed with the Secretary before the appointed time of the meeting or any adjournment of the meeting’
3. No member shall be allowed to exercise his vote or serve as director unless he is current on all assessments.
____________

Thank you for your replies:

Our by-laws (seee above) do not state how we ought to vote on amendments. Florida Statute Chapter 720 is also silent on this issue. I have not reviewed the Articles of Incorporation Chapter 617, yet.

When voting on amending the by-laws should we take a roll call vote? Or should we use ballots? If the latter, do the proxy holders fill out the ballots for the absentee members?

Or, can we amend our by-laws and use absentee ballots to begin with and forget the proxies? The Chapter 720 talks only about proxies and someone on this forum implied that absentee ballots may not be allowed for HOAs in Florida. If true than we must use proxies. So, how does your Association vote on amendments to by-laws when proxies are used at the Annual meeting?

The profile of our association is unique. We are quite small (under 50 units) and more than 50% are absentee owners and the permanent residents are seniors for the most part. So, clarity and simplicity is the key to voting on anything, otherwise nothing will be done.
I’d appreciate any suggestions you may have.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Eva,

I'd be curious to know what section "A" says. You've posted section "B" which, IMO, only pertains to adopting a resolution to adopt a proposed amendment to the bylaws. It doesn't appear that this is the article stating how to vote on the actual amendment.

My interpretation is that the members may vote in preson, by proxy or may send a written statement to the Secretary stating how they wish to vote. However, the article is very misleading regarding the number of votes required. Section B.1 says 51% of the members then Section B.2 says 60% of the members; so which is it??? Then it says by a 2/3 vote of the BOD. So which is it, a vote of the BOD or a vote of the members? (Section B.3 pertains to the BOD that is in control during declarant control.) And, either the BOD or the members of the Assn can propose the proposed amendment, but it doesn't say how many members -- 1 member or all of the members????

Board members are also members of the assn, so when it says a member may vote by proxy, it means ALL members.

EvaM1 (Florida)
Posts: 190

Posted:

Mary,

section A: 'Notice of the subject matter of a proposed amendment shall be included in the notice of any meeting at which a proposed amendment is considered.'
___

The rules are giving us some choices, it seems. The way I read it – but I may be wrong - is as follows:

Option I: Either 2/3 board + 51% membership is required; or

Option II: IF no vote by the Board THAN 60% membership is required

OPTION III: ‘Until the first election of directors, by all of the directors’.

The Option III is really bizarre, and I do not know what it says. Perhaps it says that the newly elected board (5 members) can approve all amendments providing that all five Board Members vote in favor. What do you think?

MaryA1 (Arizona)
Posts: 7,043

Posted:

Eva,

After reading your interpretation and again reading the bylaws article, I could interpret this way,

If the board proposed the proposed amendment then a 2/3 vote of the board and a 51% vote of the membership is required. However, if the members propose the proposed amendment then a 60% vote of the membership is required. Option III only applies if the assn is under declarant control. Note that it says, "until the first election of the directors", which means until the first annual meeting at which time the member elect a BOD. If you are no longer under declarant control, then Option III no longer applies.

The article is highly ambiguous and open to all sorts of interpretation. The BOD most like has the authority to interpret all gov docs, so it really depends upon how they interpret this article.

Do these two sections come under the heading "amendments"? If not, what heading do they come under. I'm thinking there should be more language in the amendment article as this particular section only refers to "proposing a proposed amendment". In other words the actual amendment is not being voted on yet. The BOD and the members are only voting to determine whether or not the bylaws should be amended. Frankly, this seems ridiculaous to me as it would involve holding 2 elections, this one and then another one to vote on the amendment.

EvaM1 (Florida)
Posts: 190

Posted:

And, either the BOD or the members of the Assn can propose the proposed amendment, but it doesn't say how many members -- 1 member or all of the members???? Mary A1
----

Mary,

good point. We just formed Doc Committee (5 people) and reviewing these documents, so please bear with me.

I would like to think that any member of the Association should be allowed to propose a change. But again, there is no text how or where the amendment can be proposed and how many people have to agree with it before it goes out for the vote? Can a petition be used? Or, is a special meeting called for that purpose required? Florida Chapter requires 5 members to call a special meeting.

EvaM1 (Florida)
Posts: 190

Posted:

Mary,

you are 1000% correct. I do really thank you.

There is no heading 'Amendments' in the By-laws. (There is a heading 'Amendments' in covenants, which I will discuss later if I may)

The above referenced you have clarified for me is written under Article VII: 'Parliamentary Rules'.
The first line says:

'These by-laws can be amended in the following manner:'

Then it goes on, and I have already posted all the text - and you answered - with the exception of the last paragraph which says:

'D. These By-laws shall not be amended in any manner which shall amend, abridge, modify, or conflict with the provisions of any institutional mortgagee, having a first mortgage on a townhouse unit, without prior written consent of the institutional mortgagee affected. '

Yak, who decides that?

MaryA1 (Arizona)
Posts: 7,043

Posted:

Eva,

Generally it takes a certain % of the members to petition the board, whether it be to call a special meeting or, in this case, to ask for an amendment to the gov. docs. I wouldn't think only 1 member would have this authority. If that were the case the board could be faced with calling special meetings to amend the docs every month!

Usually when an amendment is being proposed a special meeting is called for the purpose of discussing the proposed amendment and/or to vote on it.

The Doc Committee sounds like a good idea. Perhaps they can come up with an amendment article for the bylaws that would be clearer and more concise than the one you have. And I would include it under an article titled "Amendments" not "Parliamentary Procedures".

Are you certain FL law states only 5 members are required to call a special meeting. That sounds really low to me. Is your assn under the FL 720 statutes, if so, I believe the following applies:

720.306
3. SPECIAL MEETINGS.--Special meetings must be held when called by the board of directors or, unless a different percentage is stated in the governing documents, by at least 10 percent of the total voting interests of the association. Business conducted at a special meeting is limited to the purposes described in the notice of the meeting.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Eva,

Well that's strange! Having the amendment procedure under the article titled "Parliamentary Rules". And since this really is the article for amending the bylaws, the wording is really confusing as it doesn't talk about amending by rather proposing a proposed amendment. If I were on the board I would suggest that the requirements stated are to apply to amending the bylaws. The first order of business should be to amend the bylaws so that they are more clear and concise and to make the amendment procedure a separate Article titled "Amendments".

EvaM1 (Florida)
Posts: 190

Posted:

Mary,

am sorry for not being clear. The Florida statute 10% requirement for special meeting translates to 5 people in our community.

We do have a strange set of by laws no doubt. As you can imagine no one reads them and consequently we do not even follow them. But, for the first time since I live here, the 2009 Board agreed to revise them. And, that is good news. Now, we need to prepare a draft - hire an attorney to review our work - and sell the membership. I am really concerned about it and take it quite seriously.

We-the doc committee- will draft Article VII Amendments to our by-laws. Can I post it here for your comments? Your help is invaluable to us.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Eva,

Sure, post away. I'm sure some of the other regular posters will have comments to make also.

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