Amend bylaws

Alisa,

The phrase "subject to amendment or repeal by vote of the owners" means that if the owners can override a decision by the board and that the owners have the final word.

The rest of what you quoted, "representing at least 75% of the total votes," is more of a problem. More precisely, the part about "total votes" is the problem.

In Arizona, depending on your bylaws, a quorum can be as few as 10 percent of the owners. So if just ten owners vote on an issue and 8 vote in favor, that might be considered "at least 75% of the total votes." Under this interpretation, total votes means the total of the number of votes cast.

But the phrase "total votes" could also mean the total of all votes that could be cast. With 100 owners, all in good standing, the number of votes required to override the BOD would be 75.

If there was ever a dispute between the board and the owners that resulted in a lawsuit, the courts would most likely find the term "total votes" to be ambiguous. Generally when there is an ambiguity the courts tend to rule against the party trying to use the ambiguity to their advantage. In this case, the court would likely find the term "total votes" to mean the total number of votes actually cast and not the total number of votes that might have been cast.

Thank you. So how I understand your response, the bod could amend the bylaws but the membership could override those changes if they wanted to? The bottom line, though, is that according to the bylaws, they can be amended by the bod?

John,

Bylaws are the documents governing the operation of the association and allowing the board to change them at will is quite common, just it is common to allow the owners to override the board's amendments to the bylaws.

Alisa, will you quote exactly the words about the board's role in amending the bylaws AND then the words about what Owners can do?

From your opening post, it looks to me like that board can amend the bylaws. But what's unclear to me is: Must 75% of Owners vote to overturn the Board's decision? Or would it just take a simple majority of 75% of Owners.

In other words, unlike Larry, the problematic word is "representing."

I think that most bylaws use the words "lots" or "Units" when specifying percentages needed for a valid vote and also to make quorum. And "votes" when specifying how many or what % is needed in favor of the measure.

"These bylaws may be amended by the BOD of the association . . ."

That seems pretty straightforward. Yes the board can amend the bylaws without seeking owner approval.

If some owners disagree with the board's decision, they have the option of overriding that action through a vote of the owners.

This is not unlike the state legislature, which can enact laws without seeking permission from the voters. If the voters dislike what the legislature has done, they can amend or repeal the act by referendum.

John,

Whether the board should be able to amend the bylaws on its own or whether owners must vote on bylaw amendments is one of those things that one can make pretty good arguments both for and against.

The problem I see with your current documents is that the bylaws cannot be changed without 3/4 of all the owners being in agreement. This is a nearly impossible standard to meet as it allows apathetic owners to keep the status quo. That is, the apathetic voices prevent progress. A vote of 3/4 of the votes cast (with a quorum) would be far more reasonable. A simple majority or 2/3 would be even better.

Allowing the board to amend without owner approval carries the risk that the board will adopt some self-serving provisions. Allowing the members to override a board decision reduces that risk provided the bar is not set so high that it cannot be reached. A simple majority within a quorum should be sufficient to override a board amendment to the bylaws (or any other action by the board).

Requiring owner approval for all changes to the bylaws adds a layer of complexity to an already complex situation. How many owners really care? How many owners understand what the bylaws are? From recent posts on this forum, it's become clear that there are many board members who do not understand the difference between CC&R's and bylaws.

This begs the question of why elect a board if they have to have the owners' permission to do anything?

Alisa:
I can't imagine that Arizona doesn't have a law saying what percentage it takes to amend bylaws. Any such law would take precedence over anything in your bylaws. Have you checked Arizona HOA law?
Jeanne

Your discussion is interesting; we, the Board of Directors, are in the process to write our Bylaws (this will be the "original" Bylaws for the Association.

We stated: The first Board of Directors duly elected by the membership and Officers elected by the Directors,the Officers of the Corporation shall write and adopt Bylaws consistent with the Georgia Non-Profit Corporation Code, the Articles, the Declaration and any rules or regulations of the Association and affix the Corporate Seal. The duly adopted Bylaws shall be sent seven (7) days to the membership to review prior to a Special Meeting duly called by the Board of Directors to discuss, answer questions and ensure members are familiar with and comply with the Bylaws.

I would appreciate any comments or suggestions.