New Bylaws trying to be created

Started by ToddB6 • 11 replies • 1591 views

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ToddB6 (Washington)
Posts: 5

Posted:

Our HOA has been around for a little more then 10 years. We currently have "Declaration of Protective Covenants, Easements, Conditions and Restrictions" on file with the county. Everyone in the HOA has a copy. We have a new board of directions (President, VP, etc) and they are currently trying to pass a new document they are calling "Bylaws" which was writen by the VP and has not gone through a lawyer. QUESTION - is how can they pass these new bylaws that are changing what is on file with the county. I have seen when we have made changes in the pass a new legal document called "Amendment to Delaration of Protective Coventants" was created and was signed into the CCR's by all the residents. We are getting together this week to dicuss. I just do not feel these changes are right and how they are going about to get this rolled out. Any help would be create. Thank you!

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Bylaws are a different animal altogether.

I'm guessing that your HOA is incorporated as either a not-for-profit or a non-profit, or perhaps even a nonstock corporation, depending on the corporate laws of your state. Generally, all corporations should have bylaws. Bylaws do not "run with the land" as deed restrictions or covenants (CCRs, etc.) do. Bylaws establish how the organization manages itself and deals with membership requirements, how a board of directors is established, qualifications of directors and officers, election and appointment of officers, duties of officers, election procedures, meeting procedures, quorum requirements, establishment of committees, etc. Bylaws are to an organization as a Constitution might be to a country or a state, or a charter to a municipality. Bylaws do not change what is on file with the county and often are not required to be filed with the county. Bylaws do not have to be written by a lawyer, and often are not written by lawyers.

JamesC (Maryland)
Posts: 282

Posted:

Todd:
Bylaws are a part of the CC&R's

Our Bylaws state the following:
POWERS AND DUTIES OF THE BOARD OF DIRECTORS

POWERS:::: The Board of Directors shall have power to: A) Adopt and publish rules and regulations governing the use of the Common Area and facilities, and the personal conduct of the members and their guests thereon, and to establish penalties for the infraction thereof:
Then it goes on and on to describe the powers given to the members of the board which are broad. Without the Bylaws the board would not be able to enforce the rules/regulations.

Jim

PetunkaM (Florida)
Posts: 1,009

Posted:

James.

No. By-laws are not a part of covenants. The By-laws are a spin-off of Articles of Incorporation and address management of the associations, while the covenants go with the land.

PetunkaM (Florida)
Posts: 1,009

Posted:

Todd,
You need to find out if you are incorporated and obtain a copy of Articles of Incorporation from the Board or the Secretary of State. After that is done, you can compare your Articles to the By-laws because they cannot be in conflict.

What document do you follow now to organize the Association meetings, voting, budgets, etc?

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Quote:

Posted By JamesC on 09/12/2011 7:42 AM
Todd:
Bylaws are a part of the CC&R's

Incorrect.

Although CCRs may require the HOA to have bylaws, that's where the relationship ends.

Bylaws to an HOA serve the same function as the bylaws of any organization, be it the local PTA or PTO, a church group, a service organization (Rotary, Kiwanis), fraternal organization (Elks, Eagles), veteran's organization (American Legion, VFW), etc.

JamesC (Maryland)
Posts: 282

Posted:

Quote:

Posted By BruceF1 on 09/12/2011 8:02 AM

Posted By JamesC on 09/12/2011 7:42 AM
Todd:
Bylaws are a part of the CC&R's

I stand corrected: It would be very difficult however to have one without the other. CC&R's may be the bible, but Bylaws are the enforcement tools needed by the board.

Todd:
The info provided by Bruce, is very clear.

Jim

ToddB6 (Washington)
Posts: 5

Posted:

In the past we always went off the CCR's.

Now from you guys say, I understand more about what the ByLaws are for and it make sense.

One other concern is they want to change the length of term for the officers. I looked in the CCR's and there is nothing that covers that in there. Can they make that change?

Todd

RogerB (Colorado)
Posts: 5,067

Posted:

Quote:

Posted By ToddB6 on 09/12/2011 7:23 AM
Our HOA has been around for a little more then 10 years. We currently have "Declaration of Protective Covenants, Easements, Conditions and Restrictions" on file with the county. Everyone in the HOA has a copy. We have a new board of directions (President, VP, etc) and they are currently trying to pass a new document they are calling "Bylaws" which was writen by the VP and has not gone through a lawyer. QUESTION - is how can they pass these new bylaws that are changing what is on file with the county. I have seen when we have made changes in the pass a new legal document called "Amendment to Delaration of Protective Coventants" was created and was signed into the CCR's by all the residents. We are getting together this week to dicuss. I just do not feel these changes are right and how they are going about to get this rolled out. Any help would be create. Thank you!

Todd,
Bylaws can not change anything in the CC&Rs. There is a priority to the governing documents of an HOA with the CC&Rs at the top, then the Articles of Incorportaion, then the Bylaws, and at the bottom is any Rules and Regulations. So if there is anything in the Bylaws which conflicts with the CC&Rs then the CC&Rs must be followed. Bylaws set forth the operational structure of the association. If your HOS is incorporated a copy of the Bylaws was required to be filed with the Secretary of State at the time of incorporation.
If not incorporated, and there are no Bylaws, Bylaws for the association need to be established promptly. If incorporated, you can get a copy of the current Bylaws and amend them, or amend and restate them completely. A lawyer is not required and often is not used when amending the Bylaws.

ToddB6 (Washington)
Posts: 5

Posted:

Yes we are incorporated. I have the current copy of the CCR's from the state.

But there is nothing in there that talks in detail about the Bylaws.

PetunkaM (Florida)
Posts: 1,009

Posted:

One other concern is they want to change the length of term for the officers. I looked in the CCR's and there is nothing that covers that in there. Can they make that change? [Todd}

Todd,

This is where the fun begins.
Are you not-for-profit corporation? If you are, check your Articles of Incorporation.. that document should address the length of term for directors and the By-laws cannot be in conflict with that provision. If there is nothing in the Articles we need to go to state statute for ‘Corporation-not-for-profit’, providing this is how you are incorporated.

Also, you may want to find out how many votes are required to approve the By-laws or, if the Board put in a specific provision saying the By-laws do not require membership approval. It should be in the section ‘Amendments’ (usually at the end).

the Bylaws was required to be filed with the Secretary of State at the time of incorporation [Roger]

Roger,
Is that true in WA state? In Florida only Articles are recorded with the Secretary of State and the By-laws must be recorded in the county where the community is located. Or, some By-laws do not have to be recorded at all. Whether or not they need to be recorded is governed by the By-laws or by state laws or both.

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Todd,

You stated that "they" want to change the length of the term for the officers, but that's not stated anywhere in the CCRs. I wouldn't expect it to be. Normally, the length of the terms for the directors and the officers are stated in the bylaws. This makes me believe your HOA must already have bylaws and the "new" bylaws are intended to replace or amend the current ones. The reason you're not finding any information is likely because you're not looking in the right place. You need to see if you can find the current bylaws to refer to.

Someone may have a copy, or you can contact the Secretary of State where you live and get a copy of the Articles of Incorporation and possibly a copy of the current bylaws as well. I find it difficult to believe that the present terms of office are the result of "oral tradition." The present terms of office must exist in writing somewhere.

The bylaws cannot change something that exists in the CCRs, the Articles of Incorporation, or in State Law. Sometimes state law provides a "default" condition in the event the bylaws are silent on a specific issue.

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