What will you do if the updated Bylaws give the Board even more control and ..

And the H.O. don't know about it.

Our current Bylaws has a clause allows Special Meetings of the members for any lawful purpose may be called at any time by the Board or the chairman of the board, if any, or by the president or 5% or more of the members. The updated Bylaws has a clue of Special Meetings of the Board but mention nothing about Special Meeting of the members. It's been removed from the updated Bylaws.

Also, the language under Amendment of By-laws also been changed from "By-laws may be adopted, amended or repealed by the vote or written assent of members .... " to "These Bylaws may be amended by approval of the Board and the affirmative vote of a Majority of a Quorum ...."

I believe no one knows about it except those who made the changes. What will you do? I'm thinking to pass out flyers to H.O. to join our mid-August monthly board meeting and question about it. Actually, I really am thinking to get H.O. together for a total recall of our Board of Directors.

See more background info on my previous post a week ago "Can our Board demanding me not to communicate with our property manager using email?"

Our updated Articles, Bylaws and CC&Rs are going through the process to the court for judge's approval since more than 50% of H.O. voted Yes for the update recently.

What will you do?

Brenda,

The Bylaws needed to be amended initially to make those changes.
Those amendments would have needed membership approval (based on what you provided).

Notification requirements typically require a copy of the proposed amendment be provided.

Therefore, the members may claim that they didn't know about it but likely were informed and chose not to read and/or participate in the process.

However, if the process of amendment is in question, then I would ask the Board to provide the ballots/written affirmation of the membership vote and notification of the meeting held on those amendments. If the Association could not produce this proof, I would look into my legal options of challenging those amendments through the courts.


I would test that hypothesis by reviewing the minutes of various meetings, notice requirements, etc.


Separate issue.
I rallied the members in my Association through flyers. However, the goal was to change the Board at elections vs. recall. I'm glad I took that path as it took three years to gain enough support through educating the members via newsletter that I produced on my own.


Here is a link to that thread:

http://www.hoatalk.com/Forum/tabid/55/view/topic/forumid/1/postid/198412/Default.aspx

It's always good to provide a link to something (or at least the link info that can be cut and pasted into browsers) to encourage someone to look at something you want them to review vs. simply posting go see (with no instructions on where the info is actually located).


I don't understand why the courts would need to approve the changes.
Perhaps someone is asking the judge to approve the changes despite obtaining the support of the members.

Can you elaborate on the process of making your amendments (step 1, 2, 3, etc.) and showing where and why the court is involved?

In rereading, I see that the documents before the Court also include the CC&Rs.

Based on that, along with research via the Davis stirling site, I believe that your Board failed to obtain the supermajority needed for the CC&Rs are are asking the court to approve the amendments anyway. Perhaps they are also utilizing the opportunity for a change in the other governing documents as well.

Here is the link to the page I was reading on Davis-Stirling:

http://www.davis-stirling.com/tabid/1318/Default.aspx#axzz1mYPZOA43

Brenda

California Corporation Code §7510 states that the President, two Board members or 5% of the members may petition a special meeting of the member, NO MATTER what the Bylaws may or may not say.

I am not sure the size of your HOA, but if you are 100 or less units, I don't believe a judge would rule in your favor. Having worked in a law firm and handling two of these types of cases, we found courts are more favorable if dealing with a larger association, say over 300 units.

It seems to me that some boards count on owner apathy and when they are faced with an owner that rocks the boat...it is shoot the messenger time. Instead of embracing people who are concerned and have a desire to serve, they push them out of the tent. Always be factual in presentations and do not let personality get into the mix. I brought a dear friend of mine who is an attorney to a meeting as my representative and the board was so rude to her and she was only acting on my behalf to alert and inform the board of the poor quality of document re-writes that they had paid dearly for. My rep finally said to the board, in a quiet voice, "Don't you understand, I am here to help you, not to cause trouble." Of all the things she said, that is the one that resonated and caused the board to question the direction they were going and the president of the board resigned because she was spearheading the issue and tailoring all the re=writes to fit her agenda. Owners who were at the meeting, and it was explosive, asked my rep if she would attend the next month.....isn't that sad. I also learned that the day after the president resigned, the attorney she got the board to hire to do the rewrites quit! I don't even know what to think about that because they have not made it public information. This HOA is mismanaged big time.
KNOWLEDGE IS POWER my friends.

Joanne

Tim, Thank you So much for your responses. They are very helpful. I believe the Association did follow the procedures to give out proposed amendments; they passed out the drafts of the amendment to all the H.O., had an informational meeting prior to the voting with the attorney, knocked on everyone's door to get the ballots back, etc. And they got a very high Yes vote back as the result of securing ballot right at the spot of H.O.'s front door; pursued Yes vote by claiming more money would be spent if not passed and needed to get court's approval.

The amendments total over 100 pages, I wonder how many H.O. did go through them carefully. The only reason I knew of the differences is because I was in the Rules committee, I saw first hand how they operated (and sorry to say I missed many meetings) and made a special effort to read the documents. No one would notice the differences unless they compare the documents side by side.

Yes, you are right, our Board is asking the court's approval on the amended Articles, Bylaws, & CC&Rs all at the same time. Thanks for the idea of rally to change the Board at election through newsletter. It sounds like a more appropriate approach considering time available, cost involved hiring an attorney and time needed to educate and gain the support from the H.O.

Richard, Thanks on the Code 7510, I saw that on the Davis-sterling site as well. We have 200 units here. We need 66 2/3% to amend now but the new document is going to be 50% on CC&Rs.

Joanne: Thanks for the heads up & the advice! For sure, I'll spend more time to educate myself on the Davis-Sterling site and HOATalk site.

THANK YOU ALL! YOU ARE GREAT!

Our threshold for a Special Meeting is 10% so 12 out of 113. Our Quorum to conduct business was 50% and we voted (needed 50%) to change it to 20%.

Many get confused. To change Covenants/Bylaws it will still require the % in the docs even if the Quorum is lowered. We had to explain this over and over when we went for the quorum change. Even then one knowledgeable owner recently said well all we need now is 20% to change something. I had to explain that he was wrong. Took him a bit to understand what I was saying. I asked did you not pay attention at the meeting? He admitted he did not understand it that way. Sometimes you cannot win.

I understand in some states one can petition the court to make changes but I believe the court will make you jump through hoops to see prove to them that you went about trying to get enough to agree before you turned to the court. I understand it is not a slap dunk.

Please provide the EXACT and complete language in the proposed amendment, Brenda. that will hop us a lot!

This is why I don't believe in quorum, except for Board meetings. What point is there in having a quorum of 20% when Bylaws require 51% (rounded up) in the affirmative and CCRs require 67% (rounded up) in the affirmative. Just make sure any changes that can be made have a percentage that make sense.

Then you can have elections for directors and the person who wants to get on a Board has a fair chance. A person appointed, because of current 50% or whatever %, all they have to do is NOTHING to stay on the Board because a vast majority of mid to larger association can't reach quorum.

If you don't like the bums you first voted in, vote them out next time.

Thanks Richard for validating my thought. With whatever I've learned so far in our community, I truly believe we have big problems here. Really have to find ways to convince H.O. to have a total make over with our Board. Thanks again for your input.

Brenda cited this: "These Bylaws may be amended by approval of the Board and the affirmative vote of a Majority of a Quorum of the Members..."

So, OK amendments need to be approved by both. The Board a can approve nothing by itself re: the bylaws. A lower % of owners for approval doesn't bother me as It is difficult to get a whole lot of owners to approve. In my opinion, bylaws are not as important as CC&Rs. So I have a different opinion than JohnC or Richard.

What is the number in the amended bylaws to achieve a quorum of Owners, Brenda?

So, the board a cannot amend them without a majority of a quorum of owners agreeing also. I don't know if that's typical, but I don't think it's very bad.

The second longer part that JohnC quoted is, I think as he says. It only states that if your bylaws conflict with new State laws, upon the written advice of the HOA's attorney, the bylaws can be changed to match state laws.

But what a mess of an amendment!! As a native English speaker, I had to really concentrate on figurine git out!

This happened in my neighborhood. The few got elected to the board and had ambitious plans but when they went to the homeowners nothing passed. So the board decided to listen to the membership, right?

Wrong.

They started altering the articles of incorporation and by-laws to change voting requirements and thresholds and board membership requirements to permit certain people to serve ( a couple board members were not residents or owners).

Once they made those changes they then pushed their various plans through. They changed attorneys to one that gave them the answers they wanted and pushed plans that were unpopular. Each time they failed they found a way to pass it with less support. For instance, They wanted speed bumps but failed to get support. So they then used a municipal service benefit unit that targeted only a fraction of the neighborhood and passed from returned county ballots (which most homeowners didn't recognize as a neighborhood related document). They then rewrote the C&R's for their neighboring communities and proceeded to get 51 % of each neighborhood over a period of a couple years to give them even more authority.

That led to a years long lawsuit that bankrupted the neighborhood.

The moral of the story is that changing the by-laws or rules when nobody is watching to give the board more power is a BAD idea

These are as bad as a set of governing I have ever seen. Did an attorney write these for you association?

* Election of Directors-quorum has effectively been eliminated as one returned ballot qualifies as quorum.
* Assessment Votes-What is the voting requirement-If quorum is 50% and the affirmative vote of 51% or a majority, what's the point of quorum.
* All Other Member Votes-What other election other than directors is there?
* Act of Members Requires Majority of a Quorum-Quorum would be 1/3 and majority would be 50% +1 of the one-third.
* Removal of Directors by the Members-In an association of 100, 17 could remove a good director. Wouldn't want to be in that association.

I hope the association didn't pay money for these. A law student during school orientation could have done a better job.

This is awful. A quorum represents a percentage of members required, at mininmum, to make a decision. A quorum is not a number to be determined ex post facto for convenience.

Attorneys like that should be made to give their "legal advice" in an open setting that would permit spectators to point out what a sleazebag he or she is. Seriously, lawyers like that should have their ability to participate in "attorney-client privilege" relationships revoked.

If you need to focus on a few specific things in the 100-pages of amendments, I'd start there. Research "quorum", its history, and what great legal minds have had to say about it over the years.

Actually, when I questioned it in the rules committee, the chairman said same rule, i.e. the number of the valid ballots received shall constitute a quorum, applies to the public election.

Second sentence on wikipedia's article on "Quorum":


You can call that "nothing" if you like. If they effectively abolish quorum for the election of directors then a really small number of voters will run the show. That goes against what most state legislators seem to think is right when it comes to HOAs.

Easy to say if H.O. really know what's going on. Got to start to educate H.O. and convince them to vote the directors out and replace those who's in charge of the committees, amend the documents again and find other H.O. who are willing to volunteer... Lots of things to do.

I've been doing some reading and am coming around to the view that while quorum might be a noble concept, the practical realities of actually getting things done should also play a big part in how decisions are made. Putting aside the absurdity of a 1,200 member association in the first place, I think I would try a few other things first before just eliminating quorum altogether. To me both scenarios seem ripe for abuse and corruption. I find myself reverting to the default position that says, in effect, if owners can't be bothered to participate in the process of governing the association then they deserve what they get. Which also mirrors our civic elections nationwide.

And we get those owners in those scenarios who come to this site seeking help, and we call them lunatics.

Other than that, I have no clue what we said.

Geno

It seems I am talking to a wall, but let me leave you with this.

There is a 1200 unit HOA, actually a number of them in California. Four years ago, one member from that association came to this site asking for help. The site pretty much threw him under the bus. He tried to get on the board to try and create a transparent community. He was thrown every roadblock in his way by the board and the attorney. He got some help, got on the board, eliminated quorum and they have had open, fair elections every sense. My ex-boss lives there and wouldn't lift a finger to offer assistance.

My association has done it since 2010 and with the exception that the management companies can't send out the right election materials we have had no problems. None of our governing documents or operating rules have been or can be compromised because we eliminated quorum. The percentage of approval is based on the importance of the document.

How many owners do you want to be involved, everyone? What a mess that would be.

Here is our amendment language in Georgia:

15. GENERAL PROVISIONS.

(a) Duration. This Declaration shall run with and bind the Property for the maximum time permitted under Georgia law, and shall, to the extent so permitted, have perpetual duration.

(b) Amendments

(i) This Declaration shall be amended only by the agreement of Owners of Lots to which two-thirds (2/3) of the votes in the Association pertain. Agreement of the required majority of Owners to any Amendment shall be evidenced by their execution of the Amendment or, in the alternative, by the sworn statement of the President, any Vice-President or Secretary of the Association attached to or incorporated in an Amendment executed by the Association, stating unequivocally that agreement of the required majority was otherwise lawfully obtained and that all notices required by the Act were properly given. No amendment to the provisions of this Declaration shall materially and adversely affect any right, title, interest or privilege herein granted or afforded to the holder of any First Mortgage encumbering any Lot unless such holder shall consent thereto. Any such Amendment shall become effective only when recorded in the Gwinnett County, Georgia records or at such later date as may be specified in the Amendment. Notwithstanding anything to the contrary in this Declaration or the Act, the approval of any proposed Amendment by a Mortgagee shall be deemed implied and consented to if the Mortgagee fails to submit a response to any written proposal for an Amendment within thirty (30) days after the Mortgagee receives notice of the proposed Amendment sent by certified mail, return receipt requested.

(ii) Notwithstanding the foregoing, this Declaration may be amended unilaterally at any time and from time to time by the Board of Directors (a) if such Amendment is necessary to bring any provision hereof into compliance with any applicable governmental statute, rule or regulation or judicial determination which shall be in conflict therewith, (b) if such Amendment is necessary to enable any reputable title insurance company to
issue a title insurance policy with respect to the Lots subject to this Declaration, (c) if such Amendment is required by an institutional or governmental lender or purchaser of Mortgage loans, including, without limitation, the Federal National Mortgage Association or Federal Horne Loan Mortgage Corporation, to enable such lender or purchaser to make or purchase Mortgage loans on the Lots subject to this Declaration or (d) if such Amendment is necessary to enable any governmental agency or reputable private insurance company to insure Mortgage loans on the Lots subject to this Declaration, provided any such Amendment shall not adversely effect the title to any Owner's Lot or materially provided any such Amendment shall not adversely effect the title to any Owner's Lot or materially alter or change any Owner's use and enjoyment of the Common Area set forth herein unless any such Owner shall consent thereto in writing."

There was no way to truncate it and retain the meaning. Basically unless something untoward happens, 2/3rds of the members must approve.

Walt

Got some useful information from my friend's husband, a retired attorney who used to manage a large firm, in different fields, with over 100 attorneys in California.

In defining a quorum to protect the homeowners., it's best to define the quorum not as 50 % or 2/3s of the people come to a meeting & vote but 50% or 2/3 of the homeowners, that forces the Board of Directors have to talk to all the homeowners.

Their firm once represented a city in southern Ca where they had the rule that any number of people can attend city council meetings and they stole about 400 million dollars from the city. So, it's very important to make it very difficult for the Board of Directors to take over your HOA.

Also, the Association should not automatically amend anything without homeowners' approval, even the laws approve it, because Ca legister pass laws all the time you may not like.

He also advised to try to stop the court from approving our recent amendments right away. Anyone can recommend a good lawyer specializes in HOA?

Brenda it is not unusual for Boards to have the power to amend the By-laws without homeowner approval. The By-laws dictate how the corporation functions and cannot have provisions that change the meaning of the Covenants. For instance if the Covenants prohibit fences the By-laws cannot allow them. Nor can they prohibit or allow things which violates the applicable statutes. In the instance you gave, I refer you as others have to davis-stirling.com. From the section on Special meetings: (emphasis added)

Special Membership Meetings
Who May Call a Meeting. As provided for in Corporations Code §7510(e), special meetings may be called for any lawful purpose by the following:

Directors. By the board, the chairman of the board, or the president.

Petition. By petition of the membership signed by at least 5% of the members. The right to call a meeting by 5% of the membership cannot be changed or eliminated by contrary provisions in the bylaws. Members are restricted on business that can be conducted at a meeting and may be limited in their ability to amend their governing documents via petition.

Others. By such other persons as are specified in the bylaws.

The purpose of the meeting must be set forth in the petition so members know what they are signing. The board is allowed to verify signatures before setting a meeting date and giving notice. The obligation to publish the names of the petition signers is unclear.

How we got around the quorum issue:

Many years ago, our board decided that there wasn't enough participation from the general membership, so they reduced the quorum requirement by vote of the board. They published the quorum reduction to the membership.

Do I think this was valid? No. IMO, it would have taken a vote of the HOs to change the quorum requirements.

But ... Under PA law, if a change isn't challenged within a year, it stands. I don't think any of the HOs understood what was going on. Very few would know to challenge the change. None did.

Now, the quorum reduction has been in place for more decades. Can't be challenged.

As I think about it, there is some merit to this approach. Can you imagine how many old decisions might have to be reversed if PA didn't have this law?