# of Board of Directors

Hi,

I'm in Texas and I recently joined our HOA Board. We have 258 homes in our community and we are not a condo community. I have read, and re-read, our governing documents but I still have a couple of questions.

Our Corporate Charter reads:
" The number of Directors shall be fixed by the By-Laws of the corporation and until changed by the By-Laws shall be three (3), and the names and addresses of those....."

Our By-Laws read:
"The business and property of the Association shall be managed and controlled by a Board of Directors consisting of not less than three (3) members. Such number may be increased by amendment of these By-Laws."

Here are my questions:

Set 1. Does that mean we can ONLY have three unless we make and an amendment? Or does this mean that the "fixed number" can be increased by amendment? What if the members were voted in at the annual meeting? Do we still need an amendment?

Set 2. What happens, or what should be done, if we find that we have more than three? Release the last voted in? And how would this be mentioned/handled in a Board meeting setting.

We are going through a ton of changes and it seems like the "slightest" issue causes certain people to get in an uproar.

Thank you for your help.

Hi Elizabeth,

Welcome and thank you for being willing to serve on your Board.

The charter would be written based on the corporation laws in place at the time the Association was incorporated. Your language is similar to other documents I have seen.

The Charter specified that there will be 3 directors. However, it provides a provision that this number may be changed by the bylaws. The bylaw section you quoted specifies that there shall be a minimum of 3 directors but may be more than 3 providing an amendment to the bylaws is adopted. To answer you questions:

1) Does that mean we can ONLY have three unless we make and an amendment? Or does this mean that the "fixed number" can be increased by amendment?

The answer to both of these questions is yes. You may only have three members until the Bylaws are amended. Typical language for such an amendment is:

The affairs of this Association shall be managed by a Board of not more than x nor less than 3.

2)What if the members were voted in at the annual meeting? Do we still need an amendment?

If you already had an election and identified more than three directors, technically only the 3 candidates with the most votes would be a member of the Board. The others could sit in on the board meetings and participate in the discussions but would not legally have a vote.

3) What happens, or what should be done, if we find that we have more than three? Release the last voted in? And how would this be mentioned/handled in a Board meeting setting.

I wish to first point out the differences between officers and directors. Directors are typically elected by the membership and form the Board of Directors. The BOD then appoints the officers of the Association (Pres, VP, etc.). Some Associations require that specific officers must also be an elected member of the Board. Your governing documents should identify this.

As it appears your Association has already elected more than three directors, my suggestion would be as follows:

a) Identify the 3 candidates who had the most votes - they are your board members.

b) Expecting that more than 3 have the same number of votes - ask that some step down from a voting seat on the board.

c) Identify what officers must also be members of the board (per your governing documents). Have the 3 board members appoint the other members who legally cannot fill a directors seat, into those officer positions that do not require board membership. - Since Board meetings usually have all officers present, everyone should be attending and participating the Board meetings.

d) Unless your governing documents specify that only Board may adopt or change, then everyone can have a vote. In those cases that require only the Board, then it would be the 3 elected members voting.

NOTE: First order of business should be to draft an amendment to the bylaws and have the general membership vote on it so this issue isn't repeated.

Hope this helps,

Tim

Tim,

Thank you very much for the clarification! You were very thorough and I truly appreciate your insight!

Thank you for taking the time to be thorough and provide complete answers!

Elizabeth