HOA By-Laws - Help needed

Started by JohnL26 • 13 replies • 1800 views

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JohnL26 (Florida)
Posts: 89

Posted:

I'm looking at our by-laws and we have a section:

Section 3. Notice and Quorum. Written notice of any meeting called for the purpose of taking any action authorized under the Declaration and requiring approval by the Members shall be sent to all Members not less than thirty (30) days nor more than sixty (60) days in advance of the meeting ..."

I'd always assumed that this related to voting in board members but the Declaration doesn't mention elections. Has anybody seen wording like this? If so, what should I be looking for in the Declaration?

MarkM31 (Washington)
Posts: 556

Posted:

"Approval by the members" is legal speak for an election of any mechanism.

KerryL1 (California)
Posts: 14,550

Posted:

To add to Mark, or to approve any other action that requires the vote of the members, e.g., raising assessment above the amount required by one's state laws; approving a substantial loan to the HOA, etc.

Our wording is similar.

RogerB (Colorado)
Posts: 5,067

Posted:

JohnL, the wording is not the best.

The Bylaws of the Association set forth election processes for the Association. Election of Board members and amendment of Bylaws should be covered in the Bylaws. The voting is by ONLY MEMBERS of the Association. HOMEOWNERS are not necessarily MEMBERS of the Association; this occurs when Voluntary rather than Manditory.

Meanwhile the Declaration establishes the process for amending the Declaration and requires a vote by all of the HOMEOWNERS. HOMEOWNERS are not necessarily MEMBERS of the Association; this occurs when Voluntary rather than Manditory.

Thus, a vote to amend the Declaration applies to HOMEOWNERS; and a vote for Association matters applies to MEMBERS.

AllisonD (Florida)
Posts: 449

Posted:

Quote:

Posted By JohnL26 on 12/09/2014 9:33 AM
I'm looking at our by-laws and we have a section:

Section 3. Notice and Quorum. Written notice of any meeting called for the purpose of taking any action authorized under the Declaration and requiring approval by the Members shall be sent to all Members not less than thirty (30) days nor more than sixty (60) days in advance of the meeting ..."

I'd always assumed that this related to voting in board members but the Declaration doesn't mention elections. Has anybody seen wording like this? If so, what should I be looking for in the Declaration?

Are you questioning the time frame for noticing the meeting? This prevents noticing the meeting more than 60 days in advance, for instance: The association would not be able to notice its annual election meeting in July to be held in February. Less than 30 days does not give people enough time to prepare and more than 60 days gives people the chance to forget! (at least that might be the theory behind this rule, especially in Florida where many residents are seasonal residents).

JohnL26 (Florida)
Posts: 89

Posted:

Thanks for all the replies.

>Are you questioning the time frame for noticing the meeting?

Well yes. I'm wondering if the bylaws are poorly drafted and am thinking that if that is the case then for an election, we must rely on statute for the time limits and what represents a quorum.

It is the reference to Declaration that troubles me. The section refers to actions in the Declaration and not actions in the Bylaws. There's nothing in the Declaration relating to voting for directors of the board. The election process is what I'm looking into.

BillH10 (Texas)
Posts: 1,217

Posted:

John, is there language in the Declaration which would require a meeting notice, quorum, or vote--such as a process to change language in the Declaration, etc. Does the Declaration "authorize" anything?

Part two of the question--is there language in the Bylaws with respect to election of directors, changes in the assessment, amendments, etc., independent of the references to the Declaration?

JohnL26 (Florida)
Posts: 89

Posted:

>John, is there language in the Declaration which would require a meeting notice, quorum, or vote--such as a process to change language in the Declaration, etc. Does the Declaration "authorize" anything?

Yes, there is a section on amending the Declaration. "Authorized Actions" are defined as all actions which the Association are allowed to take under the Declaration. There are things like imposing fines but I'm not sure if there's anything other than amending the Declaration that refers to meetings or votes though.

>Part two of the question--is there language in the Bylaws with respect to election of directors,

The term of a director is defined - "Directors shall be appointed to serve for ..." but there's no reference to how a director is appointed.

>changes in the assessment, amendments, etc., independent of the references to the Declaration?

How the bylaws may be amended is described - by a vote of members.

The bylaws describe a fine for non payment of assessment and refer to the Declaration in regard to what assessments the Association may levy.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

John

Is your association under Declarant or owner control?

The BOD shall be appointed versus elected sounds like Declarant control.

KerryL1 (California)
Posts: 14,550

Posted:

The notification time limits in your bylaws are similar to our bylaws and to CA statutes.

You also wrote, JohnL: "It is the reference to Declaration that troubles me. The section refers to actions in the Declaration and not actions in the Bylaws. There's nothing in the Declaration relating to voting for directors of the board. The election process is what I'm looking into."

Also like ours. How--the procedures-- to vote for directors is in our bylaws as are procedures for recalls, filling vacancies on the board, selecting officers, numbers needed for quorum, etc. If our bylaws are silent, we turn to CA Corporations Code or CA Civil Code statutes.

In our declaration (CC&Rs) are listed the other matters Association members vote on--members' right--i.e, matters that the Board cannot vote on by itself. I mention some examples earlier. Generally how to give notice for meetings or just about anything about meetings, who presides, how votes are tallied for elections of directors, eats., is in the bylaws.

Your also wrote, JohnL, "The term of a director is defined - 'Directors shall be appointed to serve for ...' but there's no reference to how a director is appointed."

I'd read this part more carefully--something is left out, JohnL. As JohnC points out, that seems to refer to the declarant, who would appoint directors until transition to the H/Os. On the other hand, the language of "appoints" can refer to directors who appoint a new director to fill a vacancy on the Board due to resignation, etc.

JohnL26 (Florida)
Posts: 89

Posted:

John & Kerry,

The Association is now under owner control. The bylaws would have been written prior to transition though as I presume is the norm.

Kerry, do your bylaws, when referring to quorum & notices, use the words "meeting called for the purpose of taking any action authorized under the Declaration"? Or refer to actions in the Declaration?

>I'd read this part more carefully--something is left out, JohnL.

I haven't missed anything about member voting. If there should be something else then it is not there. The procedure for directors filling vacancies is described in the section labeled "Removal" "After Turnover and Director may be removed from the Board, with or without cause, by an affirmative vote of a majority of the outstanding votes entitled to be cast by Members of the Association. Prior to Turnover, the Declarant shall be entitled to remove Directors with or without cause and appoint replacement Directors. In the event of death, resignation or removal of a Director, his successor shall be selected by the remaining members of the Board and shall serve for the unexpired term of his predecessor"

There's nothing on the procedure for members to appoint a director.

The dilemma is, do the time limits & quorum requirements in the bylaws refer to an election of members? I think that is the intention but it seems like a mistake.

KerryL1 (California)
Posts: 14,550

Posted:

The reason, JohnL, that there's nothing in your bylaws or mine about association members (H/Os) appointing directors is that H/Os do not "appoint"; H/O's vote at duly noticed meetings. Se my last reply about "who "appoints."

What does the rest of your Sec. 3 say about quorum of members?? It looks pretty clear to me that the part you cite shows the procedure for giving notice for actions by members. Look at "Members Metins or Meetings of Members in you bylaws. You will not find these topics in your declaration.

Perhaps someone else can help--I'm gonna be kinda off line for the next couple of days.

JohnL26 (Florida)
Posts: 89

Posted:

Thanks Kerry,

>What does the rest of your Sec. 3 say about quorum of members?

This is the whole of section 3:

"Written notice of any meeting called for the purpose of taking any action authorized under the Declaration and requiring approval by the Members shall be sent to all Members not less than thirty (30) days nor more than sixty (60) days in advance of the meeting. At the first such meeting called, the presence of Members or of proxies entitled to cast thirty percent (30%) or such lesser amount as may be allowed by law, of all the votes of each class of Membership shall constitute a quorum. If the required quorum is not present, another meeting may be called subject to the same notice requirement, and the required quorum at the subsequent meeting shall be one-half (1/2) of the required quorum at the preceding meeting. No such subsequent meeting shall be held more than sixty (60) days following the preceding meeting."

>Look at "Members Metins or Meetings of Members in you bylaws. You will not find these topics in your declaration.

The above section is in Article III Meeting of Members. The section on Removal (above) is in Article IV Board of Directors.

The only question is whether the notice requirement & quorum section is to be used for member meetings that do not relate to actions authorized by the declaration e.g. a vote for board members.

Kerry, Do your bylaws refer to actions authorized under the Declaration?

JohnB26 (South Carolina)
Posts: 1,001

Posted:

good pick up question !

another good one: who was cain's wife ?

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