RichardP13
(California)
Posts:824
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| 02/27/2010 8:41 PM |
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| Does anyone have any experience in amending and updating your Bylaws/CCR's to eliminate any and all mention of the original declarant/developer to make the Bylaws easy to read and understand? |
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SusanW1
(Michigan)
Posts:5035
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| 02/28/2010 4:42 AM |
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That's called a revision and is more than just amending each sentence in the bylaws.
Just do a re-write. They will be all new, anyway.
When you present it to the Members for approval, then list each change.
State the original article A, and present the new B version.
Of course you have a Bylaw committee to work on this, right?
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DonnaS
(Tennessee)
Posts:5671
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| 02/28/2010 6:23 AM |
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Richard,
It is done all of the time and rightly so. Follow what Susan has just posted, send it to the members and it should pass thru with flying colors. |
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RichardP13
(California)
Posts:824
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| 02/28/2010 7:20 AM |
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| The BOD did set up a Bylaw committee, but not sure what direction they have been given. I have another question on CCR's and Bylaws. Our Bylaws state that you don't have to be a member to be on the board, but our CCR's state you do and I know CCR's have priority over the Bylaws, and Article 10 of the Bylaws state that any conflict between the two, the CCR's prevail. Should the wording in the Bylaws be eliminated or updated? |
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MaryA1
Posts:0
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| 02/28/2010 7:36 AM |
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Richard,
Frankly I don't see the need to amend the bylaws to only remove all references to the declarant. However, if it really is a problem I would think amending the CCRs for that reason would be more effective. I would think there would be more provisions in the CCRs that address declarant rights, etc, than in the bylaws.
Now, if the BOD is adamant about amending the bylaws, certainly the article that is in conflict with the CCRs should be changed to agree with the CCRs. IMO, this topic should NOT be removed from the bylaws as that is the proper place for it.
If you want to eliminate confusion in the gov docs, when the bylaws and CCRs are in conflict with one another, that definitely IS confusion! |
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DonnaS
(Tennessee)
Posts:5671
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| 02/28/2010 8:16 AM |
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Richard,
Having been the chair of a documents committee in Florida, I can tell you what worked best for us and what advise our Attorney gave us. You already are off to a good start if you have a committee doing this work.
As long as there is a difference between something particular in the By-Laws and CC&Rs, those must be changed to match each other as the CC&Rs have priority over the by-laws so I advise you to amend that by-law.
Mary mentioned that she did not think that the by-laws need to be changed. Our Attorney suggested that as long as the committee is redoing items, it costs no more to update the entire set of documents. You may have very little to do with the By-Laws but cleaning them up certainly is a way to ensure that all items match within the entire set of docs.
When it goes to the membership, IF!! and I stress IF!! there are changes to anything which needs amending per a vote, then it is all together in a neat package for the memberrs to review before they vote to any change.
Removing references to the Developer is a common practice and is not dificult and it removes many extra pages when it comes to printing out the new docs.. |
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RogerB
(Colorado)
Posts:4647
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| 02/28/2010 8:40 AM |
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Posted By RichardP13 on 02/27/2010 8:41 PM
Does anyone have any experience in amending and updating your Bylaws/CCR's to eliminate any and all mention of the original declarant/developer to make the Bylaws easy to read and understand?
Yes, have done this and am currently in the process of doing it once more. This type amendment is referred to as "amended and restated Declaration of CC&Rs" since it requires a rewrite of the entire document in order to simplify. I suggest not doing it until there are other items which need to be changed - added and/or deleted.
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JeanneK3
(Maryland)
Posts:348
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| 02/28/2010 8:47 AM |
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I also recommend against changing the entire text of bylaws unless absolutely necessary. I have seen examples where items are slipped in that are very homeowner-unfriendly. I agree with the poster that says give the old text with the new text under it so that it is very clear what is being changed.
Jeanne |
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RichardP13
(California)
Posts:824
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| 02/28/2010 8:49 AM |
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| The main thing that will be done is eliminating quorum requirements for the election of members of the BOD. Another will be making clear that you MUST be a member, as defined in the CCR's, of the association, and not just a resident. I figured while this is being done, clean up any of the language referencing the declarant/developer and put in plain English so that it can't be left for someone to misinterprete. |
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RobertR1
(South Carolina)
Posts:5164
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| 02/28/2010 5:24 PM |
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| Richard, we went 27 years with the Declarant in out documents. My experience in the process pretty much agrees with what has been posted. The name of the re-0write might be a little different but I do know that our lawyer advised this kind of change called for a re-write and it was a laborious process. If the committee happened to be all full time residents, I am sure the process would have been smoother. Our Declarant was inserted into our documents in such a way, that there could be a question of their legal standing even after pulling out, at one time they owed a unit in the3 condo that was used as a community room. We got smart and bought the unit and then amended our documents, and deleted this reference along with nearly all, there may be one or two reference to declarant, this was five years or more ago. |
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JackieB
(California)
Posts:198
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| 03/01/2010 2:26 PM |
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| Curious.......how old are your CCR/Bylaws? Davis-Stirling changed alot that you might need to consider. |
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RichardP13
(California)
Posts:824
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| 03/01/2010 6:55 PM |
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| Community opened in 2001 and turned over to the homeowners in 2002. |
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MaryA1
Posts:0
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| 03/02/2010 8:59 AM |
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Richard,
I know we've discussed your desire to eliminate the quorum requirements for board elections, but please refresh my memory. What vote is required to elect board members? Is it the person receiving the largest number of votes or is it a % of those voting? But, either way, I can't imagine you would want board members elected by just a handful of members. If there are no quorum requirements then the board alone could elect the board members if no other members showed up at the meeting or sent in ballots. And, don't think that might never happen! |
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RichardP13
(California)
Posts:824
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| 03/02/2010 10:26 AM |
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Mary,
First, there has only been one legitimate election (where a BOD was actually elected) since 2001 and that in 2002. The BOD positions (when BOD resigns) have been filled by being appointed. If no quorum is achieved then they are in for a full term (two years). The way I read the Bylaws is that if appointed, their term is either to fill out the term or until the next election. But they would continue for two year terms if quorum is never reached. It should only be until the next Annual or Special Meeting, never for two year terms if the members didn't actually vote them in as their ballots were never opened. The way they are holding their term is some form of acclamation.
Currently, we have 317 homes and 159 of those are required to be present in person (in person or secret ballot) or by proxy for an election to even take place. Over the last 5 years, I understand from the old PM the HOA has averaged about 35 ballots. They have always gone to a second meeting and again quorum is not achieved even at the lower 25%. This past year was different, as someone other than the current BOD was running and the second meeting and election were cancelled.
People who come into an HOA, such as myself, expected that HOA elections are held like other government elections. In fact, the Davis-Stirling Act says that HOA should follow County guidelines when conducting elections. This was the first time in my 38 years of voting that my vote didn't count for something. I would put my trust in the 35 or so people that vote every year over the way our BOD is currently elected/appointed and not allowing an attorney to interpret the bylaws for their own benefit. The elimination of quorums, cumulative voting and proxies is recommended by davis-stirling.com. |
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DanielH1
(California)
Posts:481
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| 03/02/2010 11:20 AM |
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I wonder what Richard will do once he gets all his plans accomplished.
Even when he resolves all these election and bylaws issues and assuming that he gets elected, mostly the same Board will probably be re-elected and they'll just freeze him out by voting against any motion that he makes.
And, even if everything does somehow fall in his favor, managing a HOA is a slow and tedious process in any case. Lots of waiting around for Board meetings, frivolous objections and complaints and trying to get things done through other people who rarely do what you ask.
I guess that there's something to be said for principle of the thing. |
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RichardP13
(California)
Posts:824
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| 03/02/2010 11:43 AM |
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Daniel,
I wouldn't want you to worry about me. We have a group of individuals who will dedicate themselves to making the necessary changes to right the ship and they don't include me because there will be a potential conflict of interest. Running an HOA is not as difficult as people make it appear. |
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DanielH1
(California)
Posts:481
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| 03/02/2010 12:43 PM |
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| Out of curiosity, what changes do you intend to make? |
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RichardP13
(California)
Posts:824
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| 03/02/2010 12:49 PM |
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| Become transparent to the community. Ensure all public notices are posted on web site and communicated to the members (minutes, financials, agendas, newsletters) discontinue the closed sessions that are currently in place. Replace the adversarial system we currently employ to one of a partnership that treat residents with respect. |
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SheliaH
(Indiana)
Posts:350
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| 03/02/2010 12:52 PM |
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| We worked with an attorney on amending ours - the Bylaws were approved, but not the CCRs (because of the proposed rental cap - long, long story). There's still a little much legalese for my taste and one day I would like the board to publish a plain english version. |
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DanielH1
(California)
Posts:481
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| 03/02/2010 12:59 PM |
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| But do you intend to paint fences, lower fees or something? |
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RichardP13
(California)
Posts:824
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| 03/02/2010 1:02 PM |
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Daniel
Is that important? |
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JackieB
(California)
Posts:198
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| 03/02/2010 1:07 PM |
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Richard P,
As we speak, our restated CCR's/bylaws (1987) ballot is being mailed to each
homeowner. Ours' were so outdated, laborious, confusing........that we, the
BOD, made it a priority starting over one year ago. The issues that you hoped
to change were similiar to our problems; I am in So. CA and would be happy to
share any experience with this process with you. Good luck....you can be the
difference by supporting and suggesting whatever needs to be done. The next few months should prove interesting with our voting process.
Jackie |
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RichardP13
(California)
Posts:824
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| 03/02/2010 1:12 PM |
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Posted By JackieB on 03/02/2010 1:07 PM
Richard P,
As we speak, our restated CCR's/bylaws (1987) ballot is being mailed to each
homeowner. Ours' were so outdated, laborious, confusing........that we, the
BOD, made it a priority starting over one year ago. The issues that you hoped
to change were similiar to our problems; I am in So. CA and would be happy to
share any experience with this process with you. Good luck....you can be the
difference by supporting and suggesting whatever needs to be done. The next few months should prove interesting with our voting process.
Jackie
I am in the East San Fernando Valley |
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DanielH1
(California)
Posts:481
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| 03/02/2010 1:25 PM |
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It sounds like a case of "Hooray, the King is dead! Long live the King!"
But, I suppose that you know what you're doing.
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RichardP13
(California)
Posts:824
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| 03/02/2010 1:27 PM |
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| Rest assured Daniel, I do know what I am doing. |
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GlenL
(Ohio)
Posts:3526
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| 03/03/2010 12:37 PM |
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Posted By RichardP13 on 02/28/2010 7:20 AM
The BOD did set up a Bylaw committee, but not sure what direction they have been given. I have another question on CCR's and Bylaws. Our Bylaws state that you don't have to be a member to be on the board, but our CCR's state you do and I know CCR's have priority over the Bylaws, and Article 10 of the Bylaws state that any conflict between the two, the CCR's prevail. Should the wording in the Bylaws be eliminated or updated?
Or since they’re updating the Covenants they could change them to include spouses and domestic partners who are not on the deed. |
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Too bad the only people who know how to run the country are busy driving cabs and cutting hair. - George Burns |
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RichardP13
(California)
Posts:824
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| 03/03/2010 12:48 PM |
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| IMO, unless you are the legal owner, you can't serve on the Board. If, a spouse or domestic partner who are not on the Grant Deed want to volunteer they would be most welcome on one of the various committees. |
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JackieB
(California)
Posts:198
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| 03/03/2010 12:56 PM |
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| totally agree and make sure CCR's/bylaws support this. |
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GlenL
(Ohio)
Posts:3526
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| 03/03/2010 1:00 PM |
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Well, thankfully Ohio settled the matter at least for condos:
5311.08 Unit owners association.
(A)(1) Every condominium property shall be administered by a unit owners association . All power and authority of the unit owners association shall be exercised by a board of directors, which the unit owners shall elect from among the unit owners or the spouses of unit owners. If a unit owner is not an individual, that unit owner may nominate for the board of directors any principal, member of a limited liability company, partner, director, officer, or employee of that unit owner. |
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Too bad the only people who know how to run the country are busy driving cabs and cutting hair. - George Burns |
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RobertR1
(South Carolina)
Posts:5164
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| 03/03/2010 1:32 PM |
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len,
Why would multiple owners of a unit be given the latitude to pick and choose who they wanted to be on the Board, while a husband/ wife in another unit, which both may or not be listed as owners, be denied the same rights as the multi owner unit. The wording here also directs the unit owners shall select from among the unit owners or the spouse of the unit owners. What does this mean if the next sentence changes that wording. Suppose the unit owners of a unit are multiple owners each having an equal share in the unit? This seems to say there can only be two kinds of ownership, a man and wife, and a company. No single ownership and no mmultiple ownership. I don't think you have to form a company to hold joint ownership in a unit in a condominium or any other residence. But what do I know? |
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