Ohio Revised Code (ORC) 5312 and No recorded Bylaws

Started by PatriciaP7 • 15 replies • 4171 views

💬 Join us to post & get advice from 50,000 HOA & Condo leaders.

⚡ Takes 30 seconds

Already a member? Log in

PatriciaP7 (Ohio)
Posts: 9

Posted:

I sit on the board of trustees for our HOA. It was incorporated in 1990. At that time, our Covenants and Architectural Standards were recorded BUT our By Laws were not. They also have not been updated in all these years. Our board is now almost 70 % new people as elected this past June. It became clear that we needed to immediately address our Bylaws and also look into a special assessment for seal coating our plat. We have about 47 lots/Homeowners and no new construction pending or available lots for sale to build. We currently have about 75% of the amount needed in a fund set aside for road improvements. After countless hours of board meetings and bylaws meetings, we recently held a general membership meeting to submit our recommended revisions of the bylaws to meet ORC 5312 for members votes and to get a vote for the assessment. It certainly could have been handled better but we gave appropriate notice and welcomed input prior to the meeting. THe bylaws revision portion of our meeting went badly but we did manage to get the votes necessary for the special assessment. My question is, are our Bylaws valid if they were not recorded and if not, does the statute ORC 5312 have precedence in all dealings until our new bylaws are drawn up, approved by the membership and recorded with the county?

To complicate matters, we have a disgruntled past president/homeowner who is spreading misinformation, has an ax to grind with the new president and in general has made things very difficult. I realize there are 2 sides to every story but that drama is just one more avenue we have to cross that we would rather not. However, if we know we should follow the ORC above the unrecorded bylaws, we would at least have a leg to stand on. Any advice would be greatly appreciated.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Patricia,

Could you either quote ORC 5312 or provide a link to it? I do not know about anyone else but I am not familiar with this statute,

KerryL1 (California)
Posts: 14,550

Posted:

In most states there's no requirement that bylaws be recorded to be valid so you may be stuck with them for now. But Glen of OH may check in and I'm pretty sure he'll be able to help you.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Pat

Few states require Bylaws be recorded as are Covenants required to be recorded. Many recommend against such due to cost and fluidity of the Bylaws.

You also talked about a special assessment and Bylaws changes being done at the same time. Not a task I would suggest. Both controversial enough without mixing them.

If changes were made something and not recorded in the minutes and/or documented one would have a tough time proving such was made.

You do mention Rules & Regulations so I wonder if many of the changes you talk about were such versus Bylaw changes?

My suggestion to you is to separate issues, understand each, and work on each as separate issuse. Do not combine apples and oranges though both are fruits.

PatriciaP7 (Ohio)
Posts: 9

Posted:

Thank you for your question, Larry. Here is a good link to ORC 5312 which was enacted just a few years ago. http://codes.ohio.gov/orc/5312

TimB4 (Tennessee)
Posts: 21,059

Posted:

For those interested, here is the link to Ohio Revised Code 5312, OHIO PLANNED COMMUNITY LAW.

Patricia,

Keep in mind that if your Bylaws were not recorded, there is no reason why they can not be recorded as written. That solves that problem.

If a conflict exists between your Bylaws and the statute, you must follow what the statute says unless the statute defers to the Bylaws (or other governing document). It's nice not to have the conflict. However, having a conflict won't invalidate the entire set of Bylaws.

PatriciaP7 (Ohio)
Posts: 9

Posted:

I'm grateful for the replies you all have sent so far. I saw some past responses from 2012 by Glenn on this site. Hoping he will chime in at some point too.

LarryB13 (Arizona)
Posts: 4,099

Posted:

ORC 5312.02 became law on 9/10/2010. It gave existing HOA's 180 days to record their bylaws but there seems to be no penalty for not doing so except that the association cannot take any enforcement action based on the bylaws until they are recorded.

So recording the bylaws as they now exist would resolve that issue.

KerryL1 (California)
Posts: 14,550

Posted:

With your special assessment now handled, Patricia, I think I agree with JohnC that you can approach your bylaws rewrite as a separate clear-cut topic. That should help a lot. Did an attorney work with your board on the revisions? Or is you HOA uncomplicated enough that you did the revisions yourselves?

Meantime, as others suggested, go ahead and record your old ones for now.

PatriciaP7 (Ohio)
Posts: 9

Posted:

Kerry - An association member sits on our board and volunteered his time to work on the by laws committee. I do not believe he is a contract or real estate attorney though.

I can see the logic in recording our old by laws now so we have something legal to fall back on. In the meantime, we can rework our strategy to rewrite/or amend them and prepare for a second run at a vote of the membership.

My only other concern is whether the 2-3 owners (who have taken it on as their personal mission to thwart us) will view our recording of the old bylaws as in some way malicious. However, as my husband likes to say, by laws,laws and rules exis for a reason. They remove the idea that you have any personal choice. They clearly dictate what actions you can or cannot take.

I've also ordered a 2014 copy of Roberts Rules which now includes a whole chapter on HOA's. I plan to study that thoroughly for future meetings.

PatriciaP7 (Ohio)
Posts: 9

Posted:

Sorry forgot to clarify that the association member I mentioned is a laqyer. We have a committee of 5 trustees on the bylaws committee which includes myself the attorney, the current president, the secretary and one other trustee.

GlenL (Ohio)
Posts: 5,491

Posted:

Patricia do your current CC&Rs require a homeowner vote to approve the bylaws and if so by what percentage? Unless the CC&Rs give the Board the power to amend them without homeowner approval or specify a lower percentage then 5312 requires 75% to amend them. Just how drastically are you contemplating changing the bylaws?

5312.05 Amendments to declaration or bylaws.

(A) Unless otherwise specified in the declaration or bylaws, the owners may amend the declaration and bylaws by the consent of seventy-five per cent of the owners, either in writing or in a meeting called for that purpose. No amendment to the declaration or bylaws is effective until filed in the office of the county recorder.

As to being covered for your vote on the Special Assessment:

5312.02 Applicability of chapter; establishment of planned community.

(C) Nothing in this chapter invalidates any provision of a document that governs a planned community if that provision was in the document at the time the document was recorded and the document was recorded prior to the original effective date of this chapter.

Get your Bylaws filed, old ones if necessary but get them filed, for the HOA cannot commence any civil action against delinquent accounts until you do:

5312.02 Applicability of chapter; establishment of planned community.

(D)(5) No board of directors of the owners association of a planned community that is in existence on the original effective date of this chapter shall pursue any civil action against any person based upon any provision of the bylaws of that planned community or upon any amendments to the bylaws until the bylaws or amendments are filed and recorded under division (D)(1), (2), or (3) of this section.

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

GlenL (Ohio)
Posts: 5,491

Posted:

Oh and if the past-president tries to give the Board a hard time, ask him why he was derelict in his duties and didn't file the bylaws as required by statute in a timely fashion.

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

PatriciaP7 (Ohio)
Posts: 9

Posted:

Glen - Thank you for your comments. Under "Amendments" our Bylaws state, "These Code of Regulations unless otherwise limited herein may be amended, supplemented or repealed by the affirmative vote of two-thirds of the membership present and voting at any annual or special meeting, provided that at least five (5) days notice of such meeting and proposed amendment shall be given each member." In our case at the most recent special meeting which we called to address the bylaws as well as a special assessment,at the very start of the meeting one owner tried to force us to accept that he had been given a proxy from another owner (the past president). Our bylaws state the owner must be present at the meeting but elsewhere it says a designated representative can be assigned for an owner if the proper forms are filed, which in this case, they were not.

Annual Assessments require 60% and Special Assessments require 60%.

I've been consistently hearing now that whether old or not, our first step needs to be to get the old bylaws recorded ASAP. That makes great sense to me and I will try to get the rest of the trustees on board with this idea.

PatriciaP7 (Ohio)
Posts: 9

Posted:

Glen - Regarding how drastically we were going to amend them, we want to make minor changes just to be in line with ORC 5312. Items include removal of the developer (long since out of the picture), removal of class B members which was the developer and his family, addition of a discrimination clause, addition of absentee and proxy voting definitions and when they are applicable, addition of electronic meeting of the trustees in real time if applicable or necessary,...other minor things such as that.

Unfortunately, we also have a legal situation between the past president and current president involving a restraining order against the past president so that, in my humble opinion, is muddying the waters and a LOT of misinformation about what we as a board are trying to do is being spread. Frankly, I think that is even more of a reason to make sure the old bylaws get recorded ASAP so we have them at our back and as protection. The bylaws revisions can certainly wait for a special meeting after the first of the year or even the annual meeting. At that point, we can send out a packet with meeting information including everything the owners could possibly need and even hand deliver them ourselves and get signatures that they have been received. We heard from a few folks that they didn't get the emails we sent out. Lesson learned on that one :-)

PatriciaP7 (Ohio)
Posts: 9

Posted:

UPDATE: After talking with an attorney with years of experience in title and HOA'S as well as our county recorder, we drew up an amendment to our original covenants ("Whereas Ohio Revised Code 5312.02 states....and Therefore...)
quoting the Ohio Revised Code Planned Community Law 5312. We then attached our original, unrecorded bylaws to the amendment. The old bylaws are now public documents, though outdated. Trustees have met numerous times to revise the old bylaws and bring it up to the legal standards required by state law. We plan to have a special HOA mtg in February to get owners input and vote on our recommended revisions.

🎯 You've read this entire discussion

Join the conversation with 50,000 HOA & Condo Leaders:

✓ Ask follow-up questions
✓ Share your experience
✓ Get expert advice
✓ Access 350,000 discussions

Create Free Account →

⚡ Takes 30 seconds

Already a member? Log in here