Bylaw amendment without using attorney

Started by BobW17 • 17 replies • 3742 views

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BobW17 (Florida)
Posts: 8

Posted:

I am the president of a Florida HOA. We do not use a management company. Our bylaws are 26 years old and very much out of date. With the blessing and assistance of the seven-member board, I drafted a new Amended and Restated Bylaws document. Chapters 720 and 617 of the Florida Statutes were carefully consulted during all stages of writing the new bylaws. The final draft was also compared with at least two dozen similar, well written attorney written bylaw documents that are readily available in our county's official records. All board members approved the final draft. This document was then submitted to the entire membership of our 90 member HOA along with a proper drafted limited "proxy voting form." They were provided 30 days to review the new document. The members approved the new bylaws by returning affirmative votes in excess of the majority approval required for adoption. These votes will be counted at the annual meeting scheduled to be held later this month. I am an experienced writer with a background of writing legalize as part of my engineering management day job -(I am not an attorney). Considerable effort and time went into writing this new bylaws document -- and I convinced it is constructed properly and legally. NOW MY QUESTION: Can I be accused of practicing law illegally by being the primary writer of this Amended and Restated Bylaws document -- assuming I record it in the county records. I have asked this question many times at various HOA seminars -- and get very inconsistent answers. Extensive searches on the internet seem to be totally quiet on this question. I hope someone on this forum has a confirmed answer to my question. Thanks very much.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Short answer: No. You are not an outside party providing a service to the HOA.

Longer answer: If you want to be on the safe side, ask an attorney to review your docs. Shouldn't be too expensive if well constructed.

Sikubali jukumu. Read all posts at your own risk.

KerryL1 (California)
Posts: 14,550

Posted:

I don't think any statute requires bylaws to be restated by an attorney. Did the HOA pay you for this work?

Minor point. But must it be your name when they are recorded, which sounds typical in FL? Would it not be, say, the board president's name, or signatures of all directors, or the president and the secretary? Or your "registered agent," who, again may be your president or secretary.

I'm with Nps, have an attorney review these bylaws for your HOA. He also will want to to review your Covenants to make sure your rewritten bylaws do not conflict with them.

It will be well worth the fee to have this peace of mind.

CyrstalB (Maryland)
Posts: 457

Posted:

As suggested, you should have an attorney review, however, don't spend that money unless you know you have the required % to amend the bylaws, if you have to.

BobW17 (Florida)
Posts: 8

Posted:

My thanks to NpS and KerryL1 for your responses. I agree with your statements that I am not an outside party providing a service to an HOA. That is the primary reason that I feel that I am not guilty of "illegally practicing law" as one attorney implied when I asked this question. I also did not receive any compensation for the many hours spent in drafting the new "Amended and Restated Bylaws." I also agree that it would be safer to allow an attorney to look over the completed draft. But unfortunately I created a bit of a time problem in that I have already submitted the new bylaws to our members because our annual membership meeting was scheduled in the very near future and I needed the proxy approvals before the meeting. The new bylaws were approved by the required affirmative votes by no less than a majority of the members. If I just proceed from here, the new bylaws will be declared approved at the annual meeting -- after which they will be recorded in the county records. If time had permitted, I wish (in hind sight) that I had presented the new bylaws to an attorney for review before submitting them to the members for approval. However, I proceeded with the membership approval because of the time constraints -- and also because I firmly believed that the new bylaws were written in proper legal language and format. My current dilemma is that if I allow an attorney to review the draft at this late date, he might suggest minor or perhaps unnecessary changes which would require member approval all over again. I guess my question now has to be: "What are the consequences if I just proceed with the current membership approval at the annual membership meeting - followed by recording them in the county records. What legal action am I faced with if a provision is found improper at some future date -- or perhaps incompatible with our declaration of restrictions. I truly think this probably will not happen -- but I have no idea of what legal problems I would have if errors were discovered in the future. I included a severability sections that says "In the event that any provision in the Declarations, Articles, Bylaws, or Rules and Regulations is deemed invalid or unlawful, the remaining provisions shall be deemed in full force and effect.

AmandaR2 (South Carolina)
Posts: 566

Posted:

Quote:

Posted By BobW17 on 01/14/2015 4:41 AM
My thanks to NpS and KerryL1 for your responses. I agree with your statements that I am not an outside party providing a service to an HOA. That is the primary reason that I feel that I am not guilty of "illegally practicing law" as one attorney implied when I asked this question. I also did not receive any compensation for the many hours spent in drafting the new "Amended and Restated Bylaws." I also agree that it would be safer to allow an attorney to look over the completed draft. But unfortunately I created a bit of a time problem in that I have already submitted the new bylaws to our members because our annual membership meeting was scheduled in the very near future and I needed the proxy approvals before the meeting. The new bylaws were approved by the required affirmative votes by no less than a majority of the members. If I just proceed from here, the new bylaws will be declared approved at the annual meeting -- after which they will be recorded in the county records. If time had permitted, I wish (in hind sight) that I had presented the new bylaws to an attorney for review before submitting them to the members for approval. However, I proceeded with the membership approval because of the time constraints -- and also because I firmly believed that the new bylaws were written in proper legal language and format. My current dilemma is that if I allow an attorney to review the draft at this late date, he might suggest minor or perhaps unnecessary changes which would require member approval all over again. I guess my question now has to be: "What are the consequences if I just proceed with the current membership approval at the annual membership meeting - followed by recording them in the county records. What legal action am I faced with if a provision is found improper at some future date -- or perhaps incompatible with our declaration of restrictions. I truly think this probably will not happen -- but I have no idea of what legal problems I would have if errors were discovered in the future. I included a severability sections that says "In the event that any provision in the Declarations, Articles, Bylaws, or Rules and Regulations is deemed invalid or unlawful, the remaining provisions shall be deemed in full force and effect.

IMO
While having an attorney look over the newly written and approved bylaws is a good idea, it's not a legal requirement. They are simply a part of a contract. You and your neighbors approved and agreed on them, that's the important legality. If they were incompatible with your Declaration then, the declaration would prevail. You would not be faced with legal action for any error made in good faith, your covered legally because all parties are agreeing to the changes.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By BobW17 on 01/14/2015 4:41 AM
"What are the consequences if I just proceed with the current membership approval at the annual membership meeting - followed by recording them in the county records. What legal action am I faced with if a provision is found improper at some future date -- or perhaps incompatible with our declaration of restrictions. I truly think this probably will not happen -- but I have no idea of what legal problems I would have if errors were discovered in the future. I included a severability sections that says "In the event that any provision in the Declarations, Articles, Bylaws, or Rules and Regulations is deemed invalid or unlawful, the remaining provisions shall be deemed in full force and effect.

1. The only people who could challenge your actions would be your fellow owners, who had a full opportunity to review, comment on, and have their own lawyer read. They have no basis to claim that they were injured by your actions when you provided ample opportunity for them to protect themselves.

2. I can safely say that, considering the garbage I have read in some organizing docs, a volunteer who actually analyzed multiple sets of docs from solid sources and selected what he thought were the most appropriate provisions is immune from any claims of error. If some fool did challenge you, you should be covered by your Directors and Officers insurance.

3. Never too late to have docs reviewed by a lawyer. No obligation to make recommended changes, unless there is a glaring error (which I doubt).

4. If errors are discovered some time in the future, a new amendment can be made.

5. The standard by which you are legally measured is the Business Judgment Rule which involves good faith, loyalty and care. Everything you described would shield your decisions from some hindsight challenge.

Sikubali jukumu. Read all posts at your own risk.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Bob

Personally I would want the rewrite blessed by an attorney especially in FL with all its funky association rules/laws.

We are wanting to rewrite a Bylaw concerning Quorum amount. One of our BOD Members wrote an excellent modified Bylaw. I looked at it and said why not use the original lawyer written Bylaw and just change the number from 50% to 20%?

In my past business life I used two lawyers. One was a mad attack dog. I used him when going after someone. The other was a gentleman. I used him to advise me and bless things.

I say go for the blessing.

KerryL1 (California)
Posts: 14,550

Posted:

As with NpS, I too see no consequences for you, BobW. the BJR clearly will be on your side, and as pointed out, you also would be covered by D&O insurance.

And Crystal's point is important. If, somehow, the restated bylaws conflict with your "declaration of restrictions," the latter simply prevails. No harm done. Similarly, if the rewrite conflicts with FL statues, the latter prevail. I'd say you're in great shape.

Who knows? FL may soon add new statutes or change old ones that will come into conflict with your new doc.

(Sorry I didn't notice earlier that you are, indeed the Board prez.)

STILL, I'd want qualified counsel to take a looksee.

I know how much work you must have put into the restatement, Bob. I spent many hours going over ours --original, 22 pages, two classes of owners, thus voters
-- before we sent it to our HOA attorney for his advice.

I applaud you for your fine service to your community!!

AmandaR2 (South Carolina)
Posts: 566

Posted:

Bob,
Bottom like everyone agreed, you don't have to fear legal consequences. You've done everything right. Like someone said if you could make an amendment later on if necessary. Also, your Declaration of Restrictions would have the hierarchy if a contradiction were to be found. You seem VERY qualified, thorough,conscientious and you feel confident about your work. Your HOA is lucky to have you. You've done almost all the work already, I understand your concerns. If budget is a concern, it could be more expensive than you think to have an attorney look it over. My opinion based on all you've stated here, is you'll be just fine just going ahead without paying an attorney this time. Sometimes an attorney will find some minute detail for you to change or re-word, just so it doesn't look like your paying him for nothing.

AmandaR2 (South Carolina)
Posts: 566

Posted:

oops darn, should start out with:
Bottom line....

BobW17 (Florida)
Posts: 8

Posted:

My sincere thanks to the following for your responses to my question regarding the possible illegality of amending bylaws without the use of an attorney. Thank you to NpS, KerryL1, CrystalB, AmandaR2, and JohnC46.
One of the things that prompted my query about this potential legality problem has to do with the fact that one of our new homeowners is a young "litigation attorney." I have met her briefly a few times and she seems to be a very nice lady. Soon after moving to our subdivision 18 months ago, she told me that her husband (a CPA) would be willing to serve on the board sometime in the future. This was welcome news at the time because, as you all know, volunteers for board service are hard to find. Because we need to nominate three new board members as candidates at our annual membership meeting next week, we selected this CPA as one of the board's three recommended candidates. As an aside, we also allow nominations from the meeting floor -- although this never happens. In any case, here is the situation that is making me nervous. This attorney and her husband are one of the few homeowners who did not approve the new bylaws that were presented to all homeowners over a month ago. In fact this attorney homeowner never bothered to return the Proxy Ballot. Further more, she and her husband have ceased responding to ALL my emails since she received the proposed new bylaws (along with their proxy vote form). I can not even get the attorney's husband to acknowledge if he still wants to be nominated as a board candidate at the annual membership meeting. His total silence on his potential nomination could be a problem for several reason. Florida law now requires that all board members sign an affidavit (after they are elected) stating they will faithfully abide by and help enforce ALL association governing documents. If he failed to approve the new bylaws when he had the opportunity to do so, he may also refuse to sign the required affidavit. Failure to sign the affidavit means immediate removal from the board. Any suggestions on how to proceed with this nomination??? Thanks

MelissaP1 (Alabama)
Posts: 13,836

Posted:

We are talking by-laws and NOT Convenants and Restrictions? There is a difference. By-laws are pretty much internal documents of the HOA. You can change those relatively easy. Still require a vote but not usually filed. However, a few states do require By-laws to be filed. Which does cost money, proof of signatures, and a possible lawyer to file.

CC&R's do require to be filed. They require a higher number of votes typically. They go along with the deed. It's the actual restrictions. CC&R's do override the by-laws.

So make sure to understand the hierarchy of your documents. We have covered that in many times here in the past.

Sounds like good work though!!! Keep it up!!!

Former HOA President

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By BobW17 on 01/15/2015 8:13 AM
This attorney and her husband are one of the few homeowners who did not approve the new bylaws that were presented to all homeowners over a month ago. In fact this attorney homeowner never bothered to return the Proxy Ballot. Further more, she and her husband have ceased responding to ALL my emails since she received the proposed new bylaws (along with their proxy vote form). I can not even get the attorney's husband to acknowledge if he still wants to be nominated as a board candidate at the annual membership meeting. His total silence on his potential nomination could be a problem for several reason. Florida law now requires that all board members sign an affidavit (after they are elected) stating they will faithfully abide by and help enforce ALL association governing documents. If he failed to approve the new bylaws when he had the opportunity to do so, he may also refuse to sign the required affidavit. Failure to sign the affidavit means immediate removal from the board. Any suggestions on how to proceed with this nomination??? Thanks

In your shoes, I would do nothing more than you have already done. She as a lawyer and he as a CPA both understand the difference between a fiduciary responsibility and a personal opinion. If the changes passed, then they have an obligation to abide by them and to enforce them if they sit in an official capacity. That obligation exists everywhere whether an affidavit is signed or not - Apparently FL has formalize it - but lawyers and CPAs already know of the requirement by the nature of their professions.

Let the Annual Meeting play out. If elected but non-participating (either by failing to sing the affidavit or failing to show up at meetings), then I am sure that there is something in your docs that authorizes you to replace him.

Also, I would feel comfortable after the vote stating that there is a possibility that one of the elected people will not be able to serve (reason does not have to be given) - and asking for volunteers from the floor in the event that a replacement is needed.

Sikubali jukumu. Read all posts at your own risk.

AmandaR2 (South Carolina)
Posts: 566

Posted:

Completely agree with all advice given by NPS. Don't worry over hypothetical things, not worth it. (Plus they say 99% of what we worry about doesn't happen.) Fact is you've done nothing wrong, so nothing to fear. Hopefully, these people will communicate and clear things up with you before your annual meeting takes place. Keep calm and carry on....no worries.

KerryL1 (California)
Posts: 14,550

Posted:

I'm with NpS & Amanda--you'll be just fine. Strictly out of curiosity, though, do you know aspect of the Bylaws they don't like??

I suppose you could send him a registered letter, return requested, to see if he still seeks a board position.

I have no idea why Melissa felt compelled to give her bylaws speech--you, clearly, Bob, know what you're doing. And with your easy access to so many bylaws, its appears FL does record them.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

I am not saying he has done a bad job. Matter of fact, think it is great! However, the documents are NOT official until approved by the membership and put on file. If they require filing at a county level, there is official paperwork to fill out and filing fees.

No mattet how great a job he does, if those documents are not filed properly and provided to ALL members, then it is for not. These documents are typically considered PUBLIC once filed and to be made available. Each existing member will need a copy. That costs money to print and deliver.

It is not always how well you did the job, but how you show it and spread it.

Former HOA President

JohnC46 (South Carolina)
Posts: 14,265

Posted:

All

One of the worst pain in the a$$ I even encountered was a fellow BOD Member that was a lawyer. They were to scared to make any decision without a legal opinion.

Lawyers on a BOD are more trouble then they are worth.

Want one worse? One that went to law school and never passed the bar exam. They were twice as bad.

You do not want lawyers nor real estate agents on an association BOD. They are real pains in the a$$.

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