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Subject: AMENDING BYLAWS
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DanielL3
(Louisiana)

Posts:50


04/13/2008 6:32 AM  
How would you interpret the wording in our bylaws in regard to amending the bylaws? "These bylaws may be amended by majority vote of the members in attendance at any duly noticed regular or special meeting".
BruceF1
(Connecticut)

Posts:2463


04/13/2008 7:04 AM  
Daniel,
Sounds pretty clear to me, but there is a process you have to go through.
First, what constitutes a "duly noticed special meeting"? That's what you are going to probably need in order to change your bylaws (no sense waiting for a regular meeting). So, first you need a duly noticed special meeting for the purpose of amending the bylaws. Next, you need to determine who can call a special meeting. Usually, for a special meeting of the homeowners, a special meeting can be called by the president, a certain percentage of the board members, or a certain percentage of the homeowners. That should also be stated in your bylaws.

From your posts, it appears to me you are not a board member, but a homeowner. So, here's what you have to do:

1. Decide how you want to change the bylaws, either by yourself, or with some other homeowners. Then, once you have decided on the changes (have written them how you want them to read) -
2. Get enough homeowners to support you to meet the required percentage to call a special meeting and petition the secretary to call (provide notice) of a special meeting.
3. The secretary provides the notice of the meeting to all homeowners.
4. During the meeting, the existing president presides, unless the existing bylaws provide otherwise.
5. The proposed bylaw changes are debated by the homeowners who attend.
6. The proposed bylaw changes are voted on by the homeowners who attend. From the wording you provided, if a majority of the members present at the meeting vote in favor of the proposed changes, the new changes go into effect.

Note, however, the following. The bylaw changes cannot be made retroactive. In other words, they will not undo what has already been done. Your present board members/officers will complete their terms. Even if you rewite your bylaws to change how and who can remove board members and officers, you cannot make the changes retroactive, just like the government cannot make a law retroactive. In other words, the government can pass a law that makes something you did yesterday illegal, but, after passing the law, they cannot prosecute you for having done it, because the law cannot be made retroactive. They can prosecute you only if you do the same thing again after the law goes into effect. The same is true with bylaws; new changes cannot undo what was done according to the bylaws before they were changed.
WardellD
(Washington)

Posts:64


04/13/2008 7:15 AM  
I would think if a notice went out to all the homeowners that they would be amending the By-laws and called for a vote, I would think that the majority wins. The question I would have is if the changes were not filed with the proper authorities, can the changes that were made still be enforced by the board?



SusanW1
(Michigan)

Posts:5202


04/13/2008 7:24 AM  
We need more info on WHERE this is seen in your bylaws. Is it under Members' Rights or Board powers?

"These bylaws may be amended by majority vote of the members in attendance at any duly noticed regular or special meeting".

Meeting = Annual Meeting of the Members or regular Board meeting?

Members = general members or Board members?
DonnaS
(Tennessee)

Posts:5671


04/13/2008 7:45 AM  


Also, " majority of members in attendance"? WOW!!! That could be 3 if there is no requirement for a quorum. That is why we need much more info.
WardellD
(Washington)

Posts:64


04/13/2008 7:58 AM  
Yes, if you call a special meeting then I would think the majority would be the people attending the special meeting called.


Here are the results and the new board do not want to recognize the changes as they would have to remove two or three board members.





BruceF1
(Connecticut)

Posts:2463


04/13/2008 7:58 AM  
Daniel,

Yes. Two very good points from both Donna and Susan.

1. A meeting of WHOM? The board, or the homeowners?

2. How many members are required for a quorum?

3. Are you quoting the ENTIRE paragraph from the bylaws?

My previous post on this subject assumes that it is a meeting of the homeowners that is required and that you have a quorum at the meeting.

By the way. Is it a particular officer (ie, president) you don't like? Or, is it a particular board member? Or, is it just the PROCESS you are unhappy with?

Remember, to change something you're unhappy with, first, you have to get enough people to agree with you, and then you have to follow the rules to change things.
BruceF1
(Connecticut)

Posts:2463


04/13/2008 8:12 AM  
Wardell,

You said: "Here are the results and the new board do not want to recognize the changes as they would have to remove two or three board members."

I'm not sure what you are referring to, but I am assuming it is a previous case at your own HOA. If you changed your bylaws and it somehow affected your board size, your board is most likely correct in not recognizing the changes immediately. Bylaw changes cannot be made retroactive, and this has been upheld repeatedly in parliamentary law. In other words, assume a bylaw amendment changes the number of board members from 7 to 5. The existing board remains at 7 members until at least 2 members' terms are up. Thereafter, future boards would consist of 5 members.

This is no less true in government. You can reduce the size of your state legislature or congress by appropriate changes to governing documents, but the changes don't go into effect until the actual size is reduced "naturally" by death, resignation, or the completion of terms of existing members.
DanielL3
(Louisiana)

Posts:50


04/13/2008 8:24 AM  
The statement concerning amending bylaws is under Article XIX -AMENDMENT OF THE BYLAWS
WardellD
(Washington)

Posts:64


04/13/2008 8:28 AM  
Posted By BruceF1 on 04/13/2008 7:58 AM
Daniel,

Yes. Two very good points from both Donna and Susan.

1. A meeting of WHOM? The board, or the homeowners?

2. How many members are required for a quorum?

3. Are you quoting the ENTIRE paragraph from the bylaws?

My previous post on this subject assumes that it is a meeting of the homeowners that is required and that you have a quorum at the meeting.

By the way. Is it a particular officer (ie, president) you don't like? Or, is it a particular board member? Or, is it just the PROCESS you are unhappy with?

Remember, to change something you're unhappy with, first, you have to get enough people to agree with you, and then you have to follow the rules to change things.





Yes you are right there must be a quorum.





DanielL3
(Louisiana)

Posts:50


04/13/2008 8:35 AM  
1. This is a meeting of the membership
2. Quorum: "The presence, in person or by proxy, at the meeting of 25% of members entitled to vote shall constitute a quorum of the members to transact business".
3. Entire amending bylaw paragraph: "These bylaws may be amended by majority vote of the members in attendance at any duly noticed regular or special meeting. Any amendment to the bylaws to change the number of Directors shall be subject to the members approval. The Board of Directors may approve a vote on any issue aat any election through the casting of ballots by mail or a form prescribed by the Board of Directors".
4. Unhappy with the President (you can see my other subject posts) and
the system. I am a proponent of more membership involvement and say in major issues affecting our community.
5. There are enough residents in our 55+ community upset with the situation but there is ambivalence. I am afraid there will not be enough supporters come crunch time.
WardellD
(Washington)

Posts:64


04/13/2008 8:40 AM  
Posted By BruceF1 on 04/13/2008 8:12 AM
Wardell,

You said: "Here are the results and the new board do not want to recognize the changes as they would have to remove two or three board members."

I'm not sure what you are referring to, but I am assuming it is a previous case at your own HOA. If you changed your bylaws and it somehow affected your board size, your board is most likely correct in not recognizing the changes immediately. Bylaw changes cannot be made retroactive, and this has been upheld repeatedly in parliamentary law. In other words, assume a bylaw amendment changes the number of board members from 7 to 5. The existing board remains at 7 members until at least 2 members' terms are up. Thereafter, future boards would consist of 5 members.

This is no less true in government. You can reduce the size of your state legislature or congress by appropriate changes to governing documents, but the changes don't go into effect until the actual size is reduced "naturally" by death, resignation, or the completion of terms of existing members.






BruceF1;

I am sorry as I have been told I sometime jump around and don't make it clear that I am changing the subject.....

Here I am just talking about any changes done and not the ones about the adding of the board members I was talking about the one in the newsletters April 2005

ARTICLE IV, SECTION 2:


This was done back in 2005 and I have to find that information.

Sorry for not having everthing to present to make things clear...



WardellD
(Washington)

Posts:64


04/13/2008 9:02 AM  
BruceF1;

If I had all the documents I could present them to you, but they were turned over to the new board and they refuse to recognize the changes that the people voted on but we are still fighting then to enforce the changes that the people voted on..


BruceF1
(Connecticut)

Posts:2463


04/13/2008 9:03 AM  
Daniel,
Considering the "ambiivalence" of the other residents in your community, then you should be able to see why governing documents are set up the way they are. Trying to find volunteers to manage the community is not always easy.

Your bylaws paragraph is still not clear as to WHO can amend the bylaws, and seems to have mixed a few things together. Normally, the board of directors cannot change their own number or membership requirements, so I would think "members" refers to the homeowners. But then it talks about the Board of Directors approving a vote on any issue at any election, etc. What that's doing in this paragraph is beyond me.

Since it appears proxies are allowed, one way to get support is to collect enough proxies yourself. But then, anyone who wants to keep things the way they are will be doing the same thing. If you can't get the support, there's probably not much you can do.
DonnaS
(Tennessee)

Posts:5671


04/13/2008 10:14 AM  

Daniel,

Without having all of the numbers that I need to do some simple math, I will give you a "for instance"

Okay, say that you have 100 members. Your docs require 25% of the membership for a meeting quorum. That is 25 members present by proxy or in person.

Now, your Docs state that to pass an amendment or vote, the majority of those present or in person are needed to pass and item. The math is simple. You have 25% or 25 members present and the majority to pass is 13 members or 1/2 plus one of the 25 in attendance. Does anyone else think that this is rediculously low? I sure do because 13 members can in reality, control the community by their votes.

BruceF1
(Connecticut)

Posts:2463


04/13/2008 11:45 AM  
Donna,
Ridiculously low? How about yes and no?

Our bylaws, for example, can be amended by 4 people. How about that?

Here's how it works: The bylaws can be amended by 2/3 vote of the board after notice and comment to all homeowners. Now, what does that mean? Simply this. The board can propose amendments, and as long as 2/3 of the board is is favor (that's 4 out of 5), then the amendments pass. The notice and comment part? All that requires is that the proposed amendments be sent to all homeowners and that they have a period in which to provide comments to the board on the proposed changes. There's no requirement for the board to accept any of the comments, call a special meeting, or whatever. Done deal. By the way, changing the Declaration is another matter. That's a lot harder to do.

Should it be that way? Some may say yes, others may say no.

Quorum requirements for meetings of homeowners are sometimes set intentionally low in HOAs for a reason. In HOAs, it's not unusual for homeowners to be apathetic. One of the problems with bylaws is that is usually where the quroum requirements are set. If the requirements to amend or change the bylaws are set too high, you could find yourself in a "catch 22" situation. You can't get anything done, including holding elections or getting budgets passed. I'm sure you've already seen that in some postings on this site.

So, is it ridiculously low? Yes. Is it riduculously low to be practical? Probably not.
SusanW1
(Michigan)

Posts:5202


04/13/2008 4:36 PM  
Daniel - your bylaws are not clear and need to be gone over by a Committee ASAP.
for example, the "appointing" of officers is odd. And sentences in the amendment section giving the Board some powers is really confusing.

You said: "I am a proponent of more membership involvement and say in major issues affecting our community."

Remember: it is not governance by MASS rule! Elect the best people and let them govern. If the board had established committees that could report to it every month, then maybe some of these problems would not be at their level.
CharlesH9
(Michigan)

Posts:123


04/13/2008 4:57 PM  
I'll jump in here with asking if ammending bylaws is the same as amending the decleration on file with the county?
DonnaS
(Tennessee)

Posts:5671


04/13/2008 5:39 PM  

Charles,

The documents that are required to be filed in the County Clerks office are the ---PROTECTIVE COVENANTS, THE ARTICLES OF INCORPORATION AND THE BYLAWS. And that includes any and all amendments.
The ARTICLES OF INC are the documents that are required to be filed with your State under Not For Profit Corps or whatever your particular State calls them. Some are Charters, some are non profit corps.
RogerB
(Colorado)

Posts:4869


04/13/2008 8:30 PM  
Posted By CharlesH9 on 04/13/2008 4:57 PM
I'll jump in here with asking if ammending bylaws is the same as amending the decleration on file with the county?


No Charles. The Declaration and the By-laws are separate documents. Each specifies theire requirement for amending. The Declaration is much more difficult to amend; it takes more than 50% of all owners. Whereas, it is usually relatively easy to amend the By-laws. They are usually amended at a duly called meeting of a quorum of the members.
SusanW1
(Michigan)

Posts:5202


04/14/2008 6:02 AM  
ALL documents should have clear and concise wording in them that gives instruction for their amending.

In Michigan, it costs $10 to send the changes for the Articles of Incorporation to the State. They are mostly interested in the mission, and if you are a stock or non stock corporation.

The MEMBER vote, however, is much higher for amending the Articles (and rightfully so).
CharlesH9
(Michigan)

Posts:123


04/14/2008 4:03 PM  
So how does a HOA go about changing the decleration that runs for x amount of years (it's only be a mere fraction of the time alloted) and lets someone in the neighborhood blantly do something not allowed? I think that is called BAD legal advice perhaps.
DonnaS
(Tennessee)

Posts:5671


04/15/2008 3:06 PM  

Charles,
You do that change thru an "amendment" to your either Protective Covenants or Bylaws, depending on what kind of an offense this guy is accused of doing. It is done thru a vote by the entire membership and that has to follow your Bylaws and Articles of Inc. Your Covenants are the ruling document for your association and any changes to Bylaws, Architectural guidelines or Rules and Regs, must not conflict with each other or lessen the strength of the covenants.
CharlesH9
(Michigan)

Posts:123


04/15/2008 4:03 PM  
That's kind of what I thought so Mr. "has a 6' fence" when the decleration states "not to exceed 4'" has a non conforming fence.
DonnaS
(Tennessee)

Posts:5671


04/15/2008 4:46 PM  

Charles,

THE FENCE COMES DOWN BY ORDER OF THE BOARD OR ARC. IT IS NON COMPLIANCE!
YvonneA
(Illinois)

Posts:17


04/15/2008 5:37 PM  
In our Declaration section we needed 75% of the owners & 51% of mortgage companies to amend something & sent certified mail. In the By-Laws section we needed 66 2/3% of the owners and 51% of the mortgage companies & could do it in person. I had to literally go door to door of 44 condos with ballots in hand to get the needed votes. Then the amendment was to filed at the County recorder's office. We also had an attorney look it over. It was a lot of work & took some time just to get everyone's correct mortgage co. address. I suggest reading exactly where it's at in the papers.
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