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Subject: HOA lost all copies of its Bylaws
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JackP5
(Idaho)

Posts:7


05/14/2018 7:54 PM  
Hi, my name's Jack and I am the interim president of our 26 year old HOA in Boise, Idaho. Our HOA was never organized correctly from the onset and was semi-functional (at best) until 2011 when a group of members calling themselves "the volunteers" assumed control of the HOA's business affairs after the previous one-man board announced that he was moved out of state.

And although this unelected group made a lot of mistakes, it was this group that announced in September of 2011 that they could not find a set of bylaws in the corporate records.

So... any ideas on how we can resolve this issue now and legitimately adopt a much needed set of bylaws for our HOA?
GenoS
(Florida)

Posts:4076


05/14/2018 8:05 PM  
Welcome, Jack.

How big is the HOA? Leave no stone unturned while asking around if anyone has a copy of the bylaws from any time in the past. We're 29 years old and there are some 1st and 2nd generation owners here. Most of them have copies of the governing documents (conscientious 1st generation owners left their docs for the new owners when they sold) from way back when. Even old bylaws with or without any subsequent amendments would probably help.

If there are truly none to be found you could draw up "revised and restated" bylaws that would totally supersede the existing ones, wherever they are. Do you have CC&Rs. The biggest concern would be that the (new) bylaws couldn't conflict with the CC&Rs. As long as the new bylaws didn't contradict anything there, I think you'd be good to go.
TimB4
(Virginia)

Posts:16963


05/14/2018 8:29 PM  
Attorneys are good at keeping records.
Find out the attorney of record initially and contact them.
The Association will likely have to pay for the file search.
If it's the correct attorney, you can obtain a copy.


Additionally, some States require that the initial set of Bylaws be filed with the State Corporation Commission. Check to see if that's a possibility.
TimB4
(Virginia)

Posts:16963


05/14/2018 8:41 PM  
Of course, and this was probably already thought of, Contact all initial owners and ask if they have a copy.
JackP5
(Idaho)

Posts:7


05/14/2018 8:53 PM  
Thanks GenoS, I appreciate your reply. Our HOA has 101 single-family homes that are well maintained... except for the proverbial few.

As you recommended, I researched the county land records and then contacted every long-term property owner/member of our HOA and asked them to look in their records. I’m the original owner of my property and, like me, no one else can find a copy of the bylaws or remembers if they were ever provided with a copy. I also tracked down the developer and ask him (via email) about the bylaws or if there ever were any. He said yes, the initial directors, which was him and some of his business associates, adopted bylaws and filed them with the county recorder. I was doubtful because bylaws are not required to be filed with any government agency in Idaho, but I contacted the recorder’s office and they searched their records and only found our HOA’s CC&Rs; no bylaws were ever filed.

And yes, we do have CC&Rs that are from 1992 and they have never been amended. Can you imagine how awful these docs are in today's world? #smile.

I’ve also researched the Idaho nonprofit corporation act and one statue states “If initial directors are named in the articles of incorporation, the initial directors shall hold an organizational meeting, at the call of a majority of the directors, to complete the organization of the corporation by appointing officers, adopting bylaws and carrying on any other business brought before the meeting;”

Well... the “initial directors” are long gone and that’s why I’m unsure of how to remedy this problem. Although another statue says the bylaws may be amended by the directors and the members. Maybe we could amend several blank pieces of paper - eh?

JackP5
(Idaho)

Posts:7


05/14/2018 8:58 PM  
Thanks, that's a great idea, Tim. I never thought about contacting the developer's attorney. Although I have gone through ever corporate file back to 1992... I don't recall any attorney invoices of other docs way back in 1992, but I'm going to look again and I'll also contact the developer and see if he will divulge who his attorney was.
JackP5
(Idaho)

Posts:7


05/14/2018 9:04 PM  
Of course I meant statute... lol
GenoS
(Florida)

Posts:4076


05/14/2018 9:23 PM  
Posted By JackP5 on 05/14/2018 8:53 PM
Thanks GenoS, I appreciate your reply. Our HOA has 101 single-family homes that are well maintained... except for the proverbial few.

As you recommended, I researched the county land records and then contacted every long-term property owner/member of our HOA and asked them to look in their records. I’m the original owner of my property and, like me, no one else can find a copy of the bylaws or remembers if they were ever provided with a copy. I also tracked down the developer and ask him (via email) about the bylaws or if there ever were any. He said yes, the initial directors, which was him and some of his business associates, adopted bylaws and filed them with the county recorder. I was doubtful because bylaws are not required to be filed with any government agency in Idaho, but I contacted the recorder’s office and they searched their records and only found our HOA’s CC&Rs; no bylaws were ever filed.

And yes, we do have CC&Rs that are from 1992 and they have never been amended. Can you imagine how awful these docs are in today's world? #smile.

I’ve also researched the Idaho nonprofit corporation act and one statue states “If initial directors are named in the articles of incorporation, the initial directors shall hold an organizational meeting, at the call of a majority of the directors, to complete the organization of the corporation by appointing officers, adopting bylaws and carrying on any other business brought before the meeting;”

Well... the “initial directors” are long gone and that’s why I’m unsure of how to remedy this problem. Although another statue says the bylaws may be amended by the directors and the members. Maybe we could amend several blank pieces of paper - eh?


It sounds like you're doing your due diligence trying to sort matters out, Jack. Kudos for that. If you've got CC&Rs in hand then that's great. FWIW we're looking to amend our Articles of Incorporation and we plan to leave in the part where the original incorporators are named along with the names of the initial directors. Here, too, most of them are long gone but there are guidelines on the state's website that seem to require they be left in as they originally appeared regardless when amendments are drawn up.

Florida, as Tim mentioned, is one of those states that require the initial bylaws be recorded in the county's official records and, even if that wasn't necessary, our bylaws have always had a section that calls for any amendments of the bylaws to also be recorded with the county. It sounds like Idaho does things differently, which is too bad, otherwise you wouldn't be spending hours searching for something you're never going to find. I think, in general, judges look favorably on community associations who are acting in good faith and doing the best they can when faced with difficult circumstances and that have the goal of bettering the lives of their members. Usually. I'm not a lawyer but I doubt any legal challenge to new bylaws, when the old ones cannot be located despite a herculean effort to find them, would hold up.
GenoS
(Florida)

Posts:4076


05/14/2018 9:40 PM  
Another place to check is any state agencies that might have been required to sign off on the original plans of the community. I found here that the local Water Management District required assurances back in 1994, when the developer was turning over control of the HOA to the homeowners, that there was a corporate entity obligated to maintain and operate the surface stormwater system (retention/detention ponds). In their records I was surprised to see copies of all our governing documents as of 1994. I'm not familiar with Idaho but maybe there is some state agency or department overseeing permits for agriculture, forestry or water rights. Worth a look even if it's a longshot.
AugustinD


Posts:3931


05/14/2018 11:37 PM  
-- JackP5, do the CC&Rs indicate that a HOA was created? CC&Rs can legally exist without the creation of a HOA.

-- Do you have a copy of the Articles of Incorporation? If so, do they indicate a HOA was created?

-- Without Bylaws for all these years, your "HOA" has likely not had properly elected directors; meetings; officers; and more. I think the bigger issue here may be that the covenants have not been enforced for many years. If this "HOA" tries to start enforcing the covenants now, then it may lead to "members" arguing that the covenants have been legally abandoned.

-- JackP5, is your intent to have the "Board" go after the few homes that are not being maintained properly?
SueW6
(Michigan)

Posts:750


05/15/2018 4:34 AM  
This situation stresses the importance of the Secretary, who should have a binder with all the important papers (copies of) kept safe and the originals kept in a safety deposit box, or scanned or whatever they are doing nowadays to keep papers safe. Don't rely on a managaement company to keep these papers safe.

Try the bank. They may have a file on hand containing your bylaws. Try past management companies. Even the IRS had to have had a copy of the bylaws with your application for HOA status. And, of curse, go thru all minutes of the past meetings.




MelissaP1
(Alabama)

Posts:9543


05/15/2018 5:08 AM  
Keep in mind that By-laws are different than CC&R's. They are more internal to the HOA. The CC&R's are like an "outline" and the By-laws "the book". You can recreate the book by using the CC&R's as reference. So may just need to get a lawyer to assist to create a new set of by-laws to file/keep.

Former HOA President
AugustinD


Posts:3931


05/15/2018 8:12 AM  
Posted By MelissaP1 on 05/15/2018 5:08 AM
The CC&R's are like an "outline" and the By-laws "the book". You can recreate the book by using the CC&R's as reference. So may just need to get a lawyer to assist to create a new set of by-laws to file/keep.


There is no way the Bylaws could be re-created using the CC&Rs of the three HOAs where I have owned. Typically the Bylaws are critical to the election process in particular. They are part of the contract to which all Members agree. I think concocting new Bylaws using guesswork, from the little that is typically in the CC&Rs, would be a huge legal no-no. I believe such concocted Bylaws would have no legal power, and every move made under them is another step towards legal disputes.
JackP5
(Idaho)

Posts:7


05/15/2018 9:24 AM  
Thank you to everyone that has chimed in with ideas and questions regarding the situation that I am enmeshed in... you guys are awesome! This is probably going to be long so if you lose interest before I stop writing I’ll understand. #grin

There’s a really long story here because the subdivision was developed in three phases between the years of 1992-93. I don’t want to write a book that no one wants to read, but I’ll address a few of the issues and questions that have been raised so far.

Yes, our HOA was incorporated as a nonprofit corporation in Idaho in 1992 following the recordation of CC&Rs with the county recorder’s office. The CC&Rs have always been included in the closing documents for anyone purchasing property in our subdivision, both original and subsequent owners. The Articles of Incorporation are readily available from the Secretary of State and always have been... and in the new millennium we can access and download a copy from their website. The problem is that bylaws are not required to be filed or recorded with any government entity, which is unfortunate because if they were we wouldn't have a problem. Please remember that I live in part of the wild west called Idaho.

The transition from the developer to the property owners occurred in July of 1993 at a meeting of the members who also elected three initial directors (the minimum number stated in the Articles) and presumably there was a hand-off of important corporate documents and other records. Unfortunately, none of these three directors have lived in or owned property in our subdivision for many years now. On the other hand, I did receive three boxes of HOA records organized in file folders dating back to the beginning in 1992. I have taken the time to painfully peruse the contents of each of these annual folders and sadly, there are no bylaws to be found.

As far as a binder containing important documents such as copies of the Articles, Declaration, and Bylaws or resolutions and minutes of meetings there is not one to be found for the early years. What’s available in the file folders for the first 20 years is sparse, although it appears as though the record keeping improved progressively over that period. The “volunteers” that attempted to re-organize the HOA beginning in 2011, however, did keep far better records including a binder for minutes, resolutions, etc. But again... no copies of the original bylaws were found by these members and they still haven't been found.

At Tim’s excellent recommendation, I’ve been doing some research this morning but haven’t had any luck so far in tracking down an attorney of record when this subdivision was developed. I did, however, track down a former property owner that happens to be an Idaho District Judge and spoke with his staff attorney this morning in hopes that as an original property owner (who was also a practicing attorney while he lived in the subdivision) that he might have a copy of the bylaws or know where I can acquire a copy of them.

Sorry this is so long... I’ll give us all a break for now and resume addressing some of the other questions and issues that were raised as time permits.

One other thing, though. I want to share my objective for immersing myself in this mess, which is summarized in the following vision statement that was recently created by myself and the other two board members that I appointed. (yeah, there’s a story here).

“We envision a community united by common ideals, empowered by knowledge, guided by thoughtfulness, and self-governed by judicious edicts, policies, and procedures that are voluntarily complied with in exchange for preserving, protecting, and enhancing the desirability, attractiveness, and value of our properties, for providing a favorable environment for recreation, and for promoting friendliness, cooperation, safety, and the overall well-being of its residents.”

Thanks again for your excellent comments... it is sincerely appreciated. #smile
GeorgeS21
(Florida)

Posts:3130


05/15/2018 6:01 PM  
My HOA in Florida lost all records from 1995-2009 or so.

Developer was contacted and had bylaws they turned over to first BoD.

These bylaws allowed the BoD to write and vote on new bylaws ... the current Board was generally unaware there were any bylaws ...I explained there were bylaws from 1995 and 1998 ...with zero indication the 1998 version had been voted on by either the BoD or the membership.

I researched - btw - to my knowledge, there is no requirement in Florida, or there wasn’t at the time, to record bylaws. Nothing was recorded.

I have interviewed several members and BoDs and have zero new documents ....so, have recommended to the BoD that they rewrite the bylaws, vote on the bylaws and promulgate, including recording the new bylaws ...but, they should try and make the new by
AWS look as much like the 1995 and 1998 Bylaws, as possible.

GeorgeS21
(Florida)

Posts:3130


05/15/2018 6:04 PM  
Need to be able to EDIT, community123!

Also, need to be able to see the previous posts, community123!!
TimB4
(Virginia)

Posts:16963


05/15/2018 6:56 PM  
Posted By GeorgeS21 on 05/15/2018 6:04 PM

Need to be able to EDIT, community123!




Hasn't been an option even though many have asked for it.
Since the service is free, I get frustrated but don't complain.


Posted By GeorgeS21 on 05/15/2018 6:04 PM

Also, need to be able to see the previous posts, community123!!




You can.

When you are replying to any posting, right below the submit button is a check box labeled Show Replies. Clicking this box will show the entire thread.

Another option is to open two windows or tabs in the browser when replying.


JackP5
(Idaho)

Posts:7


05/15/2018 7:29 PM  
You all have inspired me to Leave No Stone Unturned (right Geno?) So in addition to a few other things, I sent a Public Information Request to our county office this morning and asked if they retained hard copy files as far back as 1992 and if so, whether it's possible that there are bylaws and other info that didn't get microfilmed or scanned and digitized.

And this afternoon I received an email from the P&Z Administrator and he said: "I located several files at our warehouse that may contain a copy of the W***** Estates Bylaws. It may take more than 3 days to collect the files so I will let you know once the files have been retrieved and are ready for your review. Should be by the end of next week, if not sooner."

How cool is that?
GeorgeS21
(Florida)

Posts:3130


05/16/2018 6:26 AM  
Thanks, Tim .... my bad ...should have seen the “Show Replies” button ...duh 🙂

Jack - I’m betting they may find some CCRs or Articles, or Deeds. Unless there were lawsuits that used the Bylaws as a basis for argument, historically, most weren’t recorded. I think this is changing - and should change.
GenoS
(Florida)

Posts:4076


05/17/2018 4:28 AM  
Posted By JackP5 on 05/15/2018 7:29 PM
You all have inspired me to Leave No Stone Unturned (right Geno?) So in addition to a few other things, I sent a Public Information Request to our county office this morning and asked if they retained hard copy files as far back as 1992 and if so, whether it's possible that there are bylaws and other info that didn't get microfilmed or scanned and digitized.

And this afternoon I received an email from the P&Z Administrator and he said: "I located several files at our warehouse that may contain a copy of the W***** Estates Bylaws. It may take more than 3 days to collect the files so I will let you know once the files have been retrieved and are ready for your review. Should be by the end of next week, if not sooner."

How cool is that?

Excellently cool!
GlenM4
(Tennessee)

Posts:141


05/17/2018 12:14 PM  
I believe you could just use the state laws for Non-profit, assuming you are a non-profit. And just use those rules as a start to the new by-laws. I know ours is basically a copy of those.
CliffordL
(New Jersey)

Posts:14


02/13/2020 4:10 PM  
Hello Jack!

Your situation is identical to the nightmare we just went thru in our HOA. One person remained president for 20 years, no elections, no board, no meetings, President for Life. Said all records were lost. I managed to wrangle an original copy of the Bylaws from a few very very old original homeowners and we formed a special committee to oust his regime. It was not without its pitchforks and lit torches.

We were lucky in that a few 80 year old residents were fastidious in their record hoarding. I have empathy for your situation. I dont know how it worked out for you but hopefully your HOA managed a solution. I dont see why you couldnt have counsel prepare new Bylaws in absence of anything on record and then have the membership adopt them. It would be quite a process but you seemed to have had little option left.

Cliff
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