bylaws vs Declarations of Restrictions, Covenants, Conditions, and Easements

Sorry for starting a new post but I have a different concern now.

I saw a prior post on this topic and the bottom line was bylaws define operations while CCR are tied to the deed

So what happens when the two do not agree?
Example(s):
Our bylaws where changed from 3 members to 5 members for the BODs

CCR states:
4.6 Board of Directors.
The Board of Directors of the Association (the “Board”) shall consist of three (3) persons.

Bylaws:
These Bylaws may be amended by
by a vote of at least a majority of the Directors at any meeting of the Directors duly called for that
purpose, providing notice of the meeting and the proposed amendments shall be given to the Members
within ten thirty (30) days following the meeting, and subject to the right of a majority of the Owners
to change such action; or
(b) at the annual meeting of the Members, by a majority vote of each class of Members who are voting in
person or by proxy.

CCR state:
12.4 Amendment

12.4.1 The covenants and restrictions of this Declaration shall run with and bind the land in perpetuity. This Declaration may be amended by an instrument signed by no less than seventy-five percent (75%) of the Unit Owners, provided that Declarant, without the consent of the Owners, may amend the Subdivision Plan during the Development Period if such amendment is approved by the Township and does not substantially affect the property rights of any Unit Owner.

Bylaws:
Section 3. Conflict-
In the case of any conflict between the Articles of Incorporation and these Bylaws, the Articles shall control; in
the case of any conflict between the Declaration and these Bylaws, the Declaration shall control.

All of this tells me since the bylaws say 5 person BOD and CCR says 3 and the bylaws defer to the CCR when in conflict - the current BOD has too (two) many members

It looks like someone wanted to increase the size of the board (which was a good idea) but failed to change the proper document. Our CC&Rs do not mention anything about the Board of Directors. This info is contained in our Articles of Incorporation which state:

"The affairs of this Association shall be managed by a Board of not more than five (5) nor less than three (3) Directors. The number of Directors may be changed by amendment of the Bylaws of the Association."

That said, you first need to confirm if a conflict really exists. To confirm conflicts, you need to look at all applicable laws as well. Expecting that you are incorporated, PA Corporate laws would also apply. Per those laws, specifically § 1723 (which has controlling power over the CC&Rs and actually defer to the Bylaws):

§ 1723. Number of directors.
(a) General rule.--The board of directors of a business corporation shall consist of one or more members. The number of directors shall be fixed by, or in the manner provided in, the bylaws. If not so fixed, the number of directors shall be the same as that stated in the articles or three if no number is so stated.

Therefore, an argument could be made that since PA law defers to the Bylaws, in this instance only, even if there is a conflict between the CC&Rs and Bylaws, the Bylaws are the controlling document. Perhaps, this is what people were thinking when the Bylaws were amended.

Mind you, an issue only really becomes an issue if the decision or process is challenged.

Obviously, the proper thing to do is change the CC&Rs as this will remove any confusion. Since you are still under declarant control, this should be fairly easy. You will need to hold the meeting but the declarant typically has the controlling votes to make the decision.

Randy,

In my opinion, somebody obviously goofed when they wrote the CCRs (Declaration). Typically, the CCRs should say nothing about the size of the board. That's a topic usually covered in the bylaws.

To eliminate the confusion, I would recommend amending the CCRs to delete any reference to the size of the board. That will also make things easier in the future since only one document (the bylaws) will contain any reference to the size of the board, and it will be consistent with prevailing law.

As for declarant control, check PA HOA laws (as there may have been a time line for the transfer of control which passed) and your governing documents. Look for classes of members (likely in the Articles of Incorporation). Typically one class is reserved for the declarant and one for homeowners.

Since you say the declarant is paying assessments and only voting 1 vote per lot, it's likely that you are under membership control.

These were all done by the developer in 2001

Does a 26 page CCR seems long?
Title:
Declarations of Restrictions, Covenants, Conditions, and Easements
for the Estates of ...
Table of Contents:
Article 1 Definitions
Article 2 Property Rights
Article 3 Reserved Rights and Obligations of Declarant
Article 4 Membership and Voting Rights
Article 5 Covenant for Maintenance Assessments
Article 6 Insurance
Article 7 Maintenance by Association
Article 8 Maintenance By Owners of Units
Article 9 Architectural and Environmental Review
Article 10 Declaration of Covenants, Conditions, and Restrictions
Article 11 Conservation Easements
Article 12 General Provisions

Filed with the county by the builder on 2001.

How about this one (not a current issue):

Township says "sheds" need to be 10 feet off boundary line but CCR require 20 feet?

Thanks