Washington State HOA with no bylaws

Started by ChristineS5 • 6 replies • 3849 views

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ChristineS5 (Washington)
Posts: 5

Posted:

Hello - Our HOA was formed in 2006 by the developer and then turned over to the members in 2007. At the turnover meeting, the developer gave "skeleton" bylaws, unsigned with many blanks, to the Board. The Board thought those were the bylaws, even though our CC&Rs state that the 1st Board is to draft bylaws. The Board never did draft bylaws. 3 years later, a member brought up that the Board had no bylaws. Instead of just drafting bylaws, they adopted "Amended Bylaws," signed them and sent them out to the members with no notice. The problem is that our CC&Rs state that in order to amend the Bylaws, the Board needed a 51% of the members, which they did not get. In addition, the Amended Bylaws changed key provisions of the CC&Rs. The CC&Rs also requires that in order to change the CC&Rs, a 51% of the members is needed. Finally, the Amended Bylaws do not contain a "severability clause," stating that if one section of the Amended Bylaws is invalid or unenforceable, then the other sections remain. It is several members position that the Board does not have valid Bylaws. I welcome any comments.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Christine,

What has to be done is simple. One or more members must challenge the validity of the Bylaws.
If the Board is willing to listen, this challenge might be met with cool heads and common sense.
If the Board is unwilling to listen, those members challenging the validity of the Bylaws will have to decide if they are willing to go through the expense of taking the issue to court for a ruling.

The other options would be to:

Overthrow the board by a recall - replacing them with like minded volunteers.
Replace the Board at the next election - replacing them with like minded volunteers.

Once either of the above was accomplished, the new Board could seek a legal opinion if the Bylaws were properly adopted. Expecting that the legal opinion will say the Bylaws were not properly adopted, the new Board could then inform the membership of the issue and draft new or amend the old Bylaws for the membership to consider and vote upon.

Note: Typically State Corporate laws must be complied with when writing Bylaws. Therefore, check those statutes prior to making any changes.

Hope this helps,

Tim

ChristineS5 (Washington)
Posts: 5

Posted:

Thanks, Tim. What you mentioned has already happened. A member did challenge the bylaws and then sued when he wasn't listened to. The HOA bought a motion for summary judgment for the court to dismiss the case because the member was wrong. The Court denied that motion and declared that if the HOA insisted on going forward with trial on the Bylaws issue, it would be "problematic for the HOA." Then, because the member ran out of money, the member settled with the HOA's insurance carrier, which resulted in the case being dismissed with no resolution on the bylaws issue. So, the members elected a new Board. They do not get it. They say that because the board has operated for 5 years under a set of Bylaws, that the Board has, in fact, de facto bylaws. Unbelievable! The Board refuses to see an attorney about this saying they are not wasting any more HOA money on attorneys (they have had at least three bad ones, the first one who suggested that the Board prepare the Amended Bylaws).

GlenL (Ohio)
Posts: 5,491

Posted:

First off you can't write a by-law to change the meaning of a covenant, so if the Board did that they are in the wrong. Second if they do not want to amend the by-laws, get a couple of neighbors together and write new ones, making sure they adhere to (64.38.030-Association bylaws) then get 10% of the members to agree to call a special meeting to vote on them (64.38.035-Association meetings -- Notice -- Board of directors) and if you get 51% to approve them, you have new by-laws.

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

ChristineS5 (Washington)
Posts: 5

Posted:

Thank you! That sounds like a plan. I have come to the conclusion that the Board does not have valid bylaws. My next question, then, would be what are the consequences for that? Did they have a right to call elections? Did they have a right to take away a non-paying member's voting rights? Etc. Etc.

GlenL (Ohio)
Posts: 5,491

Posted:

Those are questions for a court of law but I doubt they would change anything. Best to move forward and not dwell on the past.

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

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By ChristineS5 on 08/09/2012 11:35 AM

My next question, then, would be what are the consequences for that?

Corporate laws are typically civil issues and must be resolved by the parties involved or taken to court.

There is no government organization that will come in and enforce the contract (the CC&Rs) or violations of the Bylaws. This is the responsibility of the membership either by:

1) recalling the board
2) refuse to reelect the board
3) challenge the issue in a court of law

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