SHALL OR MUST

SimoneT (Florida)
Posts: 116

Posted:

A friend and neighbor in my neighborhood called the management office today, and she was told that their/our lawyer said that the "WORDING" of our By-Laws is how they came to the decision of keeping the four Board of Directors even though they were up for re-election in January after serving their terms. In January we did NOT reach quorum, and now they will be in their positions for another two years! For those that may not know, we are an HOA home community. This is what our By-Laws state:

Our BY-LAWS state in ARTICLE V111, SECTION 3: QUORUM. "SO MANY MEMBERS AS SHALL REPRESENT AT LEAST A MAJORITY OF THE TOTAL AUTHORIZED VOTES OF ALL MEMBERS, PRESENT IN PERSON OR REPRESENTED BY WRITTEN PROXY, SHALL BE REQUISITE TO AND SHALL CONSTITUTE A QUORUM AT ALL MEETINGS OF THE ASSOCIATION FOR THE TRANSACTION OF BUSINESS, EXCEPT AS OTHERWISE PROVIDED BY STATUTE, BY THE DECLARATION, THE ARTICLES OF INCORPORATION OF THE ASSOCIATION OR THESE BY-LAWS. IF, HOWEVER, SUCH QUORUM SHALL NOT BE PRESENT OR REPRESENTED AT ANY MEETING OF THE ASSOCIATION, THE CHAIRMAN OF THE MEETING *SHALL* HAVE THE POWER TO ADJOURN THE MEETING TO A TIME AND DATE NOT MORE THAN 30 DAYS IN THE FUTURE; PROVIDED NOT LESS THAN 5 DAYS WRITTEN NOTICE OF THE ADJOURNED MEETING DATE *SHALL* BE GIVEN TO THE MEMBERSHIP. AT SUCH ADJOURNED MEETING, SO MANY MEMBERS AS SHALL REPRESENT AT LEAST 33 AND 1/3% OF THE TOTAL AUTHORIZED VOTES OF ALL MEMBERS SHALL CONSTITUTE A QUORUM AND ANY BUSINESS MAY BE TRANSACTED WHICH MIGHT HAVE BEEN TRANSACTED AT THE MEETING ORIGINALLY CALLED."

The lawyer is saying that instead of *SHALL*, it should say *MUST* for the members to have another chance at a Special Meeting to meet quorum. Has anyone heard this before?

TimB4 (Tennessee)
Posts: 21,059

Posted:

Simone,

Your friend is correct. It's the way the use of the word "shall" was used.

In the section you cited, it said "the chairman shall have the power ..."
This language authorizes/empowers the Chairman to be able to adjourn the meeting to a new time and date. However, there is nothing in that section which requires the Chairman to exercise this power/authority.

Because there is no language requiring the meeting to be adjourned and reconvened if a quorum is not met it becomes the Chairman's choice to do this or not.

Hope this helps,

Tim

SimoneT (Florida)
Posts: 116

Posted:

Hello TimB:

So, this means they stay for another two years WITHOUT elections? Even though you want them out? Can we do recalls then? Why would anyone write such "ambiguous" legal paragraphs? Can By-Laws be amended? How can it be done? Thank you for your reply.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Hi Simone:

I would potentially respectfully disagree in that “shall” is a legal term utilized in a lot of legal documents and which is a mandatory term. Shall is similar to “must” or “will”.

The alternative you will see in legal documents is “may”. This in turn is similar to “if want” or “if desired”.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Janet,

I agree that typically "shall" is used as a mandatory term. However, the way it is used in the passage cited, it specifies an authority rather than a requirement.

Here is just that section:

THE CHAIRMAN OF THE MEETING *SHALL* HAVE THE POWER TO ADJOURN THE MEETING TO A TIME AND DATE NOT MORE THAN 30 DAYS IN THE FUTURE; PROVIDED NOT LESS THAN 5 DAYS WRITTEN NOTICE OF THE ADJOURNED MEETING DATE *SHALL* BE GIVEN TO THE MEMBERSHIP

Per this passage we know:

1. The Chair has the power (shall have the power) to adjourn and reconvene the meeting.
2. There is a qualifier in that power of a notice requirement to the membership.
3. No where does it specify that the Chair must exercise that power.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Hi Tim:

Let’s substitute words:

THE CHAIRMAN OF THE MEETING *WILL* HAVE THE POWER TO ADJOURN THE MEETING TO A TIME AND DATE NOT MORE THAN 30 DAYS IN THE FUTURE; PROVIDED NOT LESS THAN 5 DAYS WRITTEN NOTICE OF THE ADJOURNED MEETING DATE *MUST* BE GIVEN TO THE MEMBERSHIP

Potentially in legal terms Shall is interchangeable with both Will and Must.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Simone,

I believe that some of these questions have already been answered.

Quote:

Posted By SimoneT on 03/08/2012 7:46 PM
H
So, this means they stay for another two years WITHOUT elections?

Expecting your Association is a nonprofit corporation, I believe that the existing directors stay in place until the next general meeting. I'll have to look that up to cite the exact section but believe I cited it in another thread.

Something to the effect that Directors will stay on until a replacement is elected/appointed and qulaify. If I have time, I'll look up the exact passage.

Quote:

Posted By SimoneT on 03/08/2012 7:46 PM

Even though you want them out?

If enough members wanted the Board out, they would have shown up at the meeting or solicited other members for their proxies.

Quote:

Posted By SimoneT on 03/08/2012 7:46 PM

Can we do recalls then?

The membership may always recall - with or without cause.

Quote:

Posted By SimoneT on 03/08/2012 7:46 PM

Why would anyone write such "ambiguous" legal paragraphs?

As Janet pointed out, the terms shall, must, may are used in all legal documents as they mean specific things.

Quote:

Posted By SimoneT on 03/08/2012 7:46 PM

Can By-Laws be amended? How can it be done?

Your governing documents can be amended and the procedure to amend them should be within the documents.

Similar to a recall, the membership may also call a special meeting for the purpose of amending a specific document.

Hope this helps,

Tim

GlenL (Ohio)
Posts: 5,491

Posted:

Simone, you didn't specify what percentage of members were present either in person or by proxy but FL law changes the quorum requirement stated in your bylaw from a majority to 30%. (emphasis added)

720.306 Meetings of members; voting and election procedures; amendments.—
(1) QUORUM; AMENDMENTS.—
(a) Unless a lower number is provided in the bylaws, the percentage of voting interests required to constitute a quorum at a meeting of the members shall be 30 percent of the total voting interests. Unless otherwise provided in this chapter or in the articles of incorporation or bylaws, decisions that require a vote of the members must be made by the concurrence of at least a majority of the voting interests present, in person or by proxy, at a meeting at which a quorum has been attained.

Studies show that 5 out of 4 people have problems with fractions

SusanW1 (Michigan)
Posts: 5,202

Posted:

I think Simone is looking in the wrong place for pushing for another meeting.

(The "shall" just gives permission/authority for someone to take some steps.)

She should look under "Elections" and/or "Annual Meeting" and find out what is supposed to happen under those headings.

The problem was that as soon as there was no quorum, the next meeting should have been announced. It was not. Someone in the audience should have insisted on it. So ther "terms" of the present board are not up until there is another election.

The members can petition to have a Special Meeting for the purpose of holding elections. If Simone feels so strongly about this, she can get the petition going and see if there is membership support. AND make sure there is a quorum, either by proxy or in-person attendance. (If that applies to reaching a quorum)

As I said before, this current board is NOT going to do anything - they are perfectly happy with how this all turned out.

SimoneT (Florida)
Posts: 116

Posted:

Quote:

Posted By TimB4 on 03/08/2012 8:35 PM
Simone,

I believe that some of these questions have already been answered.

Posted By SimoneT on 03/08/2012 7:46 PM
H
So, this means they stay for another two years WITHOUT elections?

Expecting your Association is a nonprofit corporation, I believe that the existing directors stay in place until the next general meeting. I'll have to look that up to cite the exact section but believe I cited it in another thread.

Something to the effect that Directors will stay on until a replacement is elected/appointed and qulaify. If I have time, I'll look up the exact passage.

Yes, we are nonprofit corporation.
I would appreciate that TimB. Thank you.

Quote:

Posted By SimoneT on 03/08/2012 7:46 PM

Even though you want them out?

If enough members wanted the Board out, they would have shown up at the meeting or solicited other members for their proxies.

Yes, unfortunately, we know we did not meet quorum because NOT enough people showed up. I could NOT go out and get proxies because I was ill, and my friend had an emergency and had to leave town, so she could NOT get proxies. It is not like some of us did not try. Just not enough. We want to go whatever other steps we can go, to "fix" the problem.

Quote:

Posted By SimoneT on 03/08/2012 7:46 PM

Can we do recalls then?

The membership may always recall - with or without cause.

Quote:

Posted By SimoneT on 03/08/2012 7:46 PM

Why would anyone write such "ambiguous" legal paragraphs?

As Janet pointed out, the terms shall, must, may are used in all legal documents as they mean specific things.

Quote:

Posted By SimoneT on 03/08/2012 7:46 PM

Can By-Laws be amended? How can it be done?

Your governing documents can be amended and the procedure to amend them should be within the documents.

Similar to a recall, the membership may also call a special meeting for the purpose of amending a specific document.

Hope this helps,

Tim

SimoneT (Florida)
Posts: 116

Posted:

Quote:

Posted By SusanW1 on 03/09/2012 5:13 AM
I think Simone is looking in the wrong place for pushing for another meeting.

(The "shall" just gives permission/authority for someone to take some steps.)

She should look under "Elections" and/or "Annual Meeting" and find out what is supposed to happen under those headings.

The problem was that as soon as there was no quorum, the next meeting should have been announced. It was not. Someone in the audience should have insisted on it. So ther "terms" of the present board are not up until there is another election.

The members can petition to have a Special Meeting for the purpose of holding elections. If Simone feels so strongly about this, she can get the petition going and see if there is membership support. AND make sure there is a quorum, either by proxy or in-person attendance. (If that applies to reaching a quorum)

As I said before, this current board is NOT going to do anything - they are perfectly happy with how this all turned out.

Hello SusanW:

As a matter of fact, not one, but a couple of us insisted on another meeting, but the lawyer was present and the board gave him the floor, and the LAWYER affirmed what the board said. We were not happy, but if the LAWYER affirmed it, we did NOT think we had grounds. But, upon reading further, just like Janet said, I used the words the same way, we feel we were "lied" to, and now more than ever, want them out. If they can do this, what other things can they do unethically? Like can they change the entrance door to our clubhouse and another door inside by 8 inches wider and a foot higher without a permit? They want to do this also. We want another meeting. Can a SPECIAL MEETING be called by the members for another VOTING DATE? Thank you so much for all your replies.

SimoneT (Florida)
Posts: 116

Posted:

Quote:

Posted By SimoneT on 03/09/2012 6:03 AM

Posted By SusanW1 on 03/09/2012 5:13 AM
I think Simone is looking in the wrong place for pushing for another meeting.

(The "shall" just gives permission/authority for someone to take some steps.)

She should look under "Elections" and/or "Annual Meeting" and find out what is supposed to happen under those headings.

The problem was that as soon as there was no quorum, the next meeting should have been announced. It was not. Someone in the audience should have insisted on it. So ther "terms" of the present board are not up until there is another election.

The members can petition to have a Special Meeting for the purpose of holding elections. If Simone feels so strongly about this, she can get the petition going and see if there is membership support. AND make sure there is a quorum, either by proxy or in-person attendance. (If that applies to reaching a quorum)

As I said before, this current board is NOT going to do anything - they are perfectly happy with how this all turned out.

Hello SusanW:

As a matter of fact, not one, but a couple of us insisted on another meeting, but the lawyer was present and the board gave him the floor, and the LAWYER affirmed what the board said. We were not happy, but if the LAWYER affirmed it, we did NOT think we had grounds. But, upon reading further, just like Janet said, I used the words the same way, we feel we were "lied" to, and now more than ever, want them out. If they can do this, what other things can they do unethically? Like can they change the entrance door to our clubhouse and another door inside by 8 inches wider and a foot higher without a permit? They want to do this also. We want another meeting. Can a SPECIAL MEETING be called by the members for another VOTING DATE? Thank you so much for all your replies.

Sorry, Susan. I think you answered my question about another meeting. I am waiting for my friend to come back from Massachussets, and start going around getting signatures.

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Quote:

Posted By SimoneT on 03/09/2012 6:03 AM
As a matter of fact, not one, but a couple of us insisted on another meeting, but the lawyer was present and the board gave him the floor, and the LAWYER affirmed what the board said. We were not happy, but if the LAWYER affirmed it, we did NOT think we had grounds. But, upon reading further, just like Janet said, I used the words the same way, we feel we were "lied" to, and now more than ever, want them out. If they can do this, what other things can they do unethically? Like can they change the entrance door to our clubhouse and another door inside by 8 inches wider and a foot higher without a permit? They want to do this also. We want another meeting. Can a SPECIAL MEETING be called by the members for another VOTING DATE? Thank you so much for all your replies.

Lawyers always think they are right, which is why lawyers go head-to-head in court. Generally, one of them loses which clearly demonstrates that lawyers are not always "right."

A friend once told me he attended a seminar at which there was a panel of seven lawyers. A member of the audience asked the panel a question and got seven different answers.

SusanW1 (Michigan)
Posts: 5,202

Posted:

My HOA's bylaws say that the Annual meeting can be held without a quorum and "business" can be conducted, even an election - but NOT when amending the bylaws.

So we hear the reports, get the financial report approved and elect officers with how many are there.

My point is that the lawyer witnessed the presiding officer call the meeting to order and there was no quorum - so (according to Simone) there could not be an election. I wonder if there was any other activity that day . . .

If no one pushed the idea of adjourning to another date, then unless Simone's bylaws say another meeting "MUST" be scheduled, the board just let it fritter away.

The lawyer would not have a say one way or the other. Silence and withholding information are used often by lawyers.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

The Internet can be your friend:

"""""76 pages of Words and Phrases, a multi-volume book of legal definitions, are consumed by the case-law around shall. A few of the legal arguments back and forth about it can be found in the image from Mr Garner's book above. He doesn't feel that shall itself is the problem, but that it has so many senses lawyers may simply not be educable on all of them. Instead, it is probably far simpler to direct them to something clearer: must, will, may not, has an entitlement to, and so forth. This isn't "people are stupid, so we must dumb down," as some commenters see it. It's "this word is so confusing, even to many very clever people, that the alternatives are better.""""""

This may well confuse it more......LOL

JohnB26 (South Carolina)
Posts: 1,569

Posted:

? WHICH WITCH IS THE WITCHES BEST WISH ?

personally, i don't think they did not lie to you

i just think they are idiots

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By BruceF1 on 03/09/2012 6:16 AM
Lawyers always think they are right, which is why lawyers go head-to-head in court. Generally, one of them loses which clearly demonstrates that lawyers are not always "right."

A friend once told me he attended a seminar at which there was a panel of seven lawyers. A member of the audience asked the panel a question and got seven different answers.

LOL Bruce ... found that when looking for an attorney in that you can ask a certain question and get several different answers. This can make it difficult sometimes finding the brightest.

Another thought is the attorney could be acting slightly self-serving in that the current board hired the attorney and if replaced, the new board has option to retain or replace the attorney. Therefore, is the attorney attempting to keep current board in place for his benefit?

RogerB (Colorado)
Posts: 5,067

Posted:

Quote:

Posted By SimoneT on 03/08/2012 7:29 PM
A friend and neighbor in my neighborhood called the management office today, and she was told that their/our lawyer said that the "WORDING" of our By-Laws is how they came to the decision of keeping the four Board of Directors even though they were up for re-election in January after serving their terms. In January we did NOT reach quorum, and now they will be in their positions for another two years! For those that may not know, we are an HOA home community. This is what our By-Laws state:

Our BY-LAWS state in ARTICLE V111, SECTION 3: QUORUM. "SO MANY MEMBERS AS SHALL REPRESENT AT LEAST A MAJORITY OF THE TOTAL AUTHORIZED VOTES OF ALL MEMBERS, PRESENT IN PERSON OR REPRESENTED BY WRITTEN PROXY, SHALL BE REQUISITE TO AND SHALL CONSTITUTE A QUORUM AT ALL MEETINGS OF THE ASSOCIATION FOR THE TRANSACTION OF BUSINESS, EXCEPT AS OTHERWISE PROVIDED BY STATUTE, BY THE DECLARATION, THE ARTICLES OF INCORPORATION OF THE ASSOCIATION OR THESE BY-LAWS. IF, HOWEVER, SUCH QUORUM SHALL NOT BE PRESENT OR REPRESENTED AT ANY MEETING OF THE ASSOCIATION, THE CHAIRMAN OF THE MEETING *SHALL* HAVE THE POWER TO ADJOURN THE MEETING TO A TIME AND DATE NOT MORE THAN 30 DAYS IN THE FUTURE; PROVIDED NOT LESS THAN 5 DAYS WRITTEN NOTICE OF THE ADJOURNED MEETING DATE *SHALL* BE GIVEN TO THE MEMBERSHIP. AT SUCH ADJOURNED MEETING, SO MANY MEMBERS AS SHALL REPRESENT AT LEAST 33 AND 1/3% OF THE TOTAL AUTHORIZED VOTES OF ALL MEMBERS SHALL CONSTITUTE A QUORUM AND ANY BUSINESS MAY BE TRANSACTED WHICH MIGHT HAVE BEEN TRANSACTED AT THE MEETING ORIGINALLY CALLED."

The lawyer is saying that instead of *SHALL*, it should say *MUST* for the members to have another chance at a Special Meeting to meet quorum. Has anyone heard this before?

SimoneT, either you misunderstood your HOA's attorney and management company or it appear to me they are incompetent. If a quorum is not reached in accordance with the Bylaws (or if the Bylaws are silent then the State's not-for-profit Act) business can not be conducted at the meeting. Another meeting needs to be called to elect Board members and until such time as an election is held usually the Bylaws allow the current Board members to remain.

IMO SHALL is used in legal terminology and means it is a requirement; MUST can be used to describe SHALL.
MAY is used when it is optional but not required. WILL is sometimes used but is not as strong as the manditory use of the word SHALL.

EllieD (Vermont)
Posts: 446

Posted:

I found these definitions (and comment) which are used by the National Conference of Commissioners on Uniform State Laws - of which the UCIOA is one - on:

http://www.uniformlaws.org/Shared/Docs/DraftingRules_2006.pdf

RULE 203. USE OF “SHALL”, “MAY”, AND “MUST”.

(a) A duty, obligation, requirement, or condition precedent is best expressed by “shall” or “must”.

(b) Use “shall” if the verb it qualifies is a transitive verb in the active voice and the subject is animate. Example: “The aggrieved party shall file the application.” However, if the word is used to express a condition precedent, use “must”. Example: “An applicant must file an application to be considered for an exemption.”

(c) Use “must” if the verb it qualifies is in the passive voice or the subject is inanimate. Examples: “The applicant must be an adult.” “Any prior conviction must be set forth in the application.” “The order must state the time and place of the hearing.”

(d) Use “may” to confer a power, privilege, or right. Examples: “The applicant may demand [power] an extension of time.” “The applicant may renew [privilege] the application.” “The applicant may appeal [right] the decision.”

Comment - The test for determining whether the subject is animate is whether it can respond to a statutory command. For example, individuals, legal entities, and courts are animate because they can respond to a statutory command. Use “shall” in these cases. Examples: “A corporation shall file a report with the [Secretary of State] each year.” “A court of this state shall recognize a foreign country judgment.” On the other hand, an application cannot respond to a command and, thus, is inanimate. Example: “The application must contain the following information:”

SimoneT (Florida)
Posts: 116

Posted:

TO EVERYONE:

We have decided to write a letter to the laywer, instead of the management office. Should we include this bit of information on the UNIFORM LAW COMMISSION? We are also preparing ourselves to go around the community for signatures, and if we have to, do a recall.

In regards to Recalls. Let's say we have 7 board members, and want to recall four. We have four names listed on the Recall form that we want out, and four or more names listed on the same Recall form TO VOTE to replace them. If during our recall, these four resign and "appoint" friends from the commmunity to replace them, 1st question is: Will this make recall papers already signed null and void? 2nd: Can they legally appoint others in their place? 3rd: Will we have to start all over again? Thank you all so very much for your replies.

SimoneT (Florida)
Posts: 116

Posted:

Quote:

Posted By SusanW1 on 03/09/2012 6:39 AM
My HOA's bylaws say that the Annual meeting can be held without a quorum and "business" can be conducted, even an election - but NOT when amending the bylaws.

So we hear the reports, get the financial report approved and elect officers with how many are there.

My point is that the lawyer witnessed the presiding officer call the meeting to order and there was no quorum - so (according to Simone) there could not be an election. I wonder if there was any other activity that day . . .

If no one pushed the idea of adjourning to another date, then unless Simone's bylaws say another meeting "MUST" be scheduled, the board just let it fritter away.

The lawyer would not have a say one way or the other. Silence and withholding information are used often by lawyers.

Hello SusanW:

What do you mean by "I wonder if there was any other activity that day . . .?"

JohnB26 (South Carolina)
Posts: 1,569

Posted:

IMO:

they can not appoint someone to replace themselves while serving

once they have resigned (in writing ,timed and dated, and signed)
THEN
they no longer have 'standing'
AND
the remaining Board members may appoint replacements

SimoneT (Florida)
Posts: 116

Posted:

Quote:

Posted By RogerB on 03/09/2012 8:29 AM

Posted By SimoneT on 03/08/2012 7:29 PM
A friend and neighbor in my neighborhood called the management office today, and she was told that their/our lawyer said that the "WORDING" of our By-Laws is how they came to the decision of keeping the four Board of Directors even though they were up for re-election in January after serving their terms. In January we did NOT reach quorum, and now they will be in their positions for another two years! For those that may not know, we are an HOA home community. This is what our By-Laws state:

Our BY-LAWS state in ARTICLE V111, SECTION 3: QUORUM. "SO MANY MEMBERS AS SHALL REPRESENT AT LEAST A MAJORITY OF THE TOTAL AUTHORIZED VOTES OF ALL MEMBERS, PRESENT IN PERSON OR REPRESENTED BY WRITTEN PROXY, SHALL BE REQUISITE TO AND SHALL CONSTITUTE A QUORUM AT ALL MEETINGS OF THE ASSOCIATION FOR THE TRANSACTION OF BUSINESS, EXCEPT AS OTHERWISE PROVIDED BY STATUTE, BY THE DECLARATION, THE ARTICLES OF INCORPORATION OF THE ASSOCIATION OR THESE BY-LAWS. IF, HOWEVER, SUCH QUORUM SHALL NOT BE PRESENT OR REPRESENTED AT ANY MEETING OF THE ASSOCIATION, THE CHAIRMAN OF THE MEETING *SHALL* HAVE THE POWER TO ADJOURN THE MEETING TO A TIME AND DATE NOT MORE THAN 30 DAYS IN THE FUTURE; PROVIDED NOT LESS THAN 5 DAYS WRITTEN NOTICE OF THE ADJOURNED MEETING DATE *SHALL* BE GIVEN TO THE MEMBERSHIP. AT SUCH ADJOURNED MEETING, SO MANY MEMBERS AS SHALL REPRESENT AT LEAST 33 AND 1/3% OF THE TOTAL AUTHORIZED VOTES OF ALL MEMBERS SHALL CONSTITUTE A QUORUM AND ANY BUSINESS MAY BE TRANSACTED WHICH MIGHT HAVE BEEN TRANSACTED AT THE MEETING ORIGINALLY CALLED."

The lawyer is saying that instead of *SHALL*, it should say *MUST* for the members to have another chance at a Special Meeting to meet quorum. Has anyone heard this before?

SimoneT, either you misunderstood your HOA's attorney and management company or it appear to me they are incompetent. If a quorum is not reached in accordance with the Bylaws (or if the Bylaws are silent then the State's not-for-profit Act) business can not be conducted at the meeting. Another meeting needs to be called to elect Board members and until such time as an election is held usually the Bylaws allow the current Board members to remain.

IMO SHALL is used in legal terminology and means it is a requirement; MUST can be used to describe SHALL.
MAY is used when it is optional but not required. WILL is sometimes used but is not as strong as the manditory use of the word SHALL.

Hello RogerB:

No, I did not misunderstand. I was at the meeting, and this actually did happen. A few did request another meeting, then the board gave the floor to the lawyer. He confirmed/affirmed what the board had told us then. No quorum, no voting. Wait until next year. My friend called the management office a few weeks later, and even the office is also stating the same thing that was said at the meeting by the lawyer. The are using the "shall" as "not required", instead of MUST, OR WILL. Can we request another meeting, or SPECIAL MEETING for this?

RogerB (Colorado)
Posts: 5,067

Posted:

SimoneT, yes you can request another meeting since the annual meeting has not yet been held. If the Board refuses you can call a Special members meeting for this by following the procedures specified in your Bylaws. At a Special members meeting you can only cover subjects which are specified in the petition used to require to Board to call the Special meeting. The subject would be to hold the annual meeting. At the annual meeting which could not be held due to lack of a quorum because the Chair did not comply with the Bylaws you posted.

Either the attorney does not want to jeopradize their relationship with the current Board or else they are incompetent. I think this is an example of why HOA's get a bad reputation.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quite often the major difference between two attorneys is one is my paid scumbag, the other is your paid scumbag.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Hi Simone ... Roger hit the nail on the head.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By SimoneT on 03/09/2012 1:00 PM
We have decided to write a letter to the laywer, instead of the management office. Should we include this bit of information on the UNIFORM LAW COMMISSION? We are also preparing ourselves to go around the community for signatures, and if we have to, do a recall.

In regards to Recalls. Let's say we have 7 board members, and want to recall four. We have four names listed on the Recall form that we want out, and four or more names listed on the same Recall form TO VOTE to replace them. If during our recall, these four resign and "appoint" friends from the commmunity to replace them, 1st question is: Will this make recall papers already signed null and void? 2nd: Can they legally appoint others in their place? 3rd: Will we have to start all over again? Thank you all so very much for your replies.

Hi Simone:

I would state you have been advised that shall is mandatory and the same as must. Also for their information here is information from the Uniform Law regarding the issue.

I would suggest calling a special meeting first instead of recall same as stated by Roger. It potentially will be easier and you can always still recall as a last resort if needed.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Simone,

Here is a link to the entire Florida Not For Profit Corporation Act

617.0806 is the specific section about Directors staying on [emphasis added]:

"Each director shall hold office for the term to which he or she is elected or appointed and until his or her successor has been elected or appointed and qualified or until his or her earlier resignation, removal from office, or death."

SimoneT (Florida)
Posts: 116

Posted:

Quote:

Posted By TimB4 on 03/10/2012 1:00 AM
Simone,

Here is a link to the entire Florida Not For Profit Corporation Act

617.0806 is the specific section about Directors staying on [emphasis added]:

"Each director shall hold office for the term to which he or she is elected or appointed and until his or her successor has been elected or appointed and qualified or until his or her earlier resignation, removal from office, or death."

Is APPOINTED the same as REPLACED BY? What is QUALIFIED? At one meeting last year, when three people RESIGNED because of a RECALL, they gave their letters of RESIGNATION. The letters were read outloud to all members present. The letters also stated who was replacing them. IMMEDIATELY after the letters were read, the person that was mentioned in the letters to replace them, was asked to join the BOARD in the front, (these people were sitting with the rest of the members/homwowners who attended the meeting), and sat along with the other BOARD members. They are presently in these positions. Was this action correct/right?

JanetB2 (Colorado)
Posts: 4,219

Posted:

Hi Simone:

Is this discussing a prior Board Meeting and not the Annual Membership Meeting correct? If board members resign prior to end of term, then remaining board members can elect or appoint individuals to replace until the next Annual Meeting elections or remaining term (depeending on documents) as long as it is only Minority resigned or recalled. This is why I mentioned in one of the postings to you that if you do Recall the board and want to insure the Members get to elect replacements, it needs to be the Majority of the board.

SimoneT (Florida)
Posts: 116

Posted:

Quote:

Posted By JanetB2 on 03/10/2012 11:34 AM
Hi Simone:

Is this discussing a prior Board Meeting and not the Annual Membership Meeting correct? If board members resign prior to end of term, then remaining board members can elect or appoint individuals to replace until the next Annual Meeting elections or remaining term (depeending on documents) as long as it is only Minority resigned or recalled. This is why I mentioned in one of the postings to you that if you do Recall the board and want to insure the Members get to elect replacements, it needs to be the Majority of the board.

Yes, this particular incident happened last year. Three of the board members resigned when we went around with Recall forms. In January 2012, the people that REPLACED the board members that RESIGNED, their terms was up, along with another board member who was "kicked out" for non payment of monthly dues. (That's another unfortunate story about him. We supported him and what happened with that situation, but that is going to be another topic later on about taking a board member off.) So, in total, in January we had four positions to vote people in, but because we did NOT have QUORUM, these same people stayed for supposedly another year!! Now, get this. Since one position was open, (the one that was "kicked out" months past), two meetings ago, the board INVITED this one person that resigned last year to come into the board, just like that. One board member asked who second it, and he just "slided" into the vacant spot. The worst thing about this, is that he was the main one we wanted out, he resigned, and now brought back in.

Yes, we have a total of 7 board members. If, after we write the lawyer, (letting him know about the play of words with shall, must and will), and ask for another Voting Meeting, he still says we do not have the right for another meeting, then we are going for a RECALL of 4 board members.

SimoneT (Florida)
Posts: 116

Posted:

Do we need to ask the lawyer for another Voting Meeting, or do we just ask for a Special Meeting? Do we need to request a Special Meeting or can members sign a petition and present it to the board "demanding" a Special Meeting?

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By RogerB on 03/09/2012 2:00 PM
SimoneT, yes you can request another meeting since the annual meeting has not yet been held. If the Board refuses you can call a Special members meeting for this by following the procedures specified in your Bylaws. At a Special members meeting you can only cover subjects which are specified in the petition used to require to Board to call the Special meeting. The subject would be to hold the annual meeting. At the annual meeting which could not be held due to lack of a quorum because the Chair did not comply with the Bylaws you posted.

In the letter you just request another meeting because a proper annual meeting has not been held as required by the governing documents and state statutes. If they deny the request then I would do as Roger suggested and call a Special Meeting and state that the reason is to meet the association obligations in holding a proper annual meeting and election for board of director positions, which should have been rescheduled due to lack of quorum for the meeting held on xx/xx/xx.

I would utilize Recall as the last method as it is the more difficult time consuming option. Take the easier route first and hopefully it will take care of the issue.

JM10 (California)
Posts: 503

Posted:

I agree that you should request another meeting and if that fails request a special meeting.

Ask the lawyer to put everything he/she said in writing.

I would make sure that people showed up by getting people involved.

For Shall: shall means must.
Must means must.

From Law.com:

May, can mean must.

shall

v. 1) an imperative command as in "you shall not kill." 2) in some statutes, "shall" is a direction but does not mean mandatory, depending on the context.

may

v. a choice to act or not, or a promise of a possibility, as distinguished from "shall," which makes it imperative. 2) in statutes, and sometimes in contracts, the word "may" must be read in context to determine if it means an act is optional or mandatory, for it may be an imperative. The same careful analysis must be made of the word "shall." Non-lawyers tend to see the word "may" and think they have a choice or are excused from complying with some statutory provision or regulation.

SimoneT (Florida)
Posts: 116

Posted:

Quote:

Posted By JM10 on 03/11/2012 10:36 AM
I agree that you should request another meeting and if that fails request a special meeting.

Ask the lawyer to put everything he/she said in writing.

I would make sure that people showed up by getting people involved.

For Shall: shall means must.
Must means must.

From Law.com:

May, can mean must.

shall

v. 1) an imperative command as in "you shall not kill." 2) in some statutes, "shall" is a direction but does not mean mandatory, depending on the context.

may

v. a choice to act or not, or a promise of a possibility, as distinguished from "shall," which makes it imperative. 2) in statutes, and sometimes in contracts, the word "may" must be read in context to determine if it means an act is optional or mandatory, for it may be an imperative. The same careful analysis must be made of the word "shall." Non-lawyers tend to see the word "may" and think they have a choice or are excused from complying with some statutory provision or regulation.

Hello JM10:

Yes, this is were the problem lies. The board said it is up to them, and the board decided that we could do NOTHING until next year, and the lawyer said that it is up to the board, and what the BOARD decides. We say it is up to ALL of US.

Thank you for your reply.

SimoneT (Florida)
Posts: 116

Posted:

Quote:

Posted By SimoneT on 03/09/2012 1:04 PM

Posted By SusanW1 on 03/09/2012 6:39 AM
My HOA's bylaws say that the Annual meeting can be held without a quorum and "business" can be conducted, even an election - but NOT when amending the bylaws.

So we hear the reports, get the financial report approved and elect officers with how many are there.

My point is that the lawyer witnessed the presiding officer call the meeting to order and there was no quorum - so (according to Simone) there could not be an election. I wonder if there was any other activity that day . . .

If no one pushed the idea of adjourning to another date, then unless Simone's bylaws say another meeting "MUST" be scheduled, the board just let it fritter away.

The lawyer would not have a say one way or the other. Silence and withholding information are used often by lawyers.

Hello SusanW:

Did you read this question? Thank you.

Hello SusanW:

What do you mean by "I wonder if there was any other activity that day . . .?"

JanetB2 (Colorado)
Posts: 4,219

Posted:

Hi Simone:

She potentially was wondering if they had conducted any other annual association business since there was no quorum met.

JanetB2 (Colorado)
Posts: 4,219

Posted:

I would be curious myself ...