Error in Articles and Bylaws

Two different attorneys created an error in the bylaws and articles. One error is 13 years old the other is three years old. The board refuses to fix the error. In fact the board is illegal and it can't be recalled. There has been discussion that the statute of limitations applies. Other discussion says that Florida law does not provide a time limit to correct errors.
I'm really struggling here. Has anyone had any experience correcting an error to bylaws and or articles. The error is there is supposed to be an odd number of board members and there is an even number. The second error made the articles match the bylaws. Florida says articles trump bylaws not the other way around
Thanks in advance

Why do you believe that the "board is illegal and it can't be recalled?"

Why do you believe there should be an odd number of board members?

Not sure what is meant here by the statement that they made the articles match the bylaws. It sometimes happens that an association that takes a close look at their CC&Rs finds that they are not operating in accordance with that document. At that point they may conform their operations to the document, but they may instead choose to amend the document to bring it into conformity with a mode of operating they're familiar with and which is working well. Assuming appropriate steps were taken to adopt the amendment, there would be nothing erroneous or objectionable in taking the second approach.

On the other hand, an amendment that says the bylaws will be the controlling document, so that future changes in the bylaws will be deemed incorporated into the CC&Rs, would be like driving down the street with your car in reverse: it's plainly incorrect as a matter of practice but you'd have to check local law to determine whether it's illegal. Something like this could be done out of ignorance or it could be done with an improper motive of making it possible to avoid the (usually more stringent) procedures for amending the CC&Rs when the Board wants to make a change.

As for having a board with an even number of members, it's generally understood that this is undesirable because of the possibility of deadlock, but deadlocks can occur with an odd number of board members due to absence, resignation or abstention, and I've never seen a law requiring an odd number of board members. The issue here might be whether the even number was created through a drafting error (what lawyers call a scrivener's error) rather than as part of an intentional change. If they decided for some reason that the desirable number for the board was an even number, this would be an unusual choice but a valid one. If they ended up with an even number through some kind of slip-up, the error should be corrected.

Generally there is no statute of limitations for correcting errors in a contract. Certain other legal doctrines can prevent the assertion of a right after passage of time, however, and specific circumstances may dictate whether those doctrines would apply.

I understand the order of documents. The original articles call for an odd number of board members between 3-9. It also says if there is a conflict between bylaws and articles that the bylaws control. That is against Florida non profit corporate law. The bylaws allow for the board to change only the number of board members not the form (odd/even) the bylaws say if there is a conflict then the articles control. That is correct.

pRior to turnover the developer changed the bylaws to have 6 board members. Nothing was done to the articles. That amendment is considered unenforceable. It conflicts with the articles. Three years ago I called the problem to the boards attention. The current attorney made the articles match the bylaws and have six members. Can't do that.

So two errors by attorneys and we have a board always in conflict.

Maybe the answer is to consider these errors vs unenforceable amendments, as errors have no statute of limitations.

I'd like to see the wording that says the form may not be changed or that there shall always be an odd number.

Per FL 617.0803, the Board is to have 3 or more directors. Even the statute doesn't specify an odd number.

Although it's preferable to have an odd number, I don't see the conflict between the Statute or, based on what you provided, the documents over numbers as 6 is more than 3 and complies with having 3-9 directors.



Actually, there was no conflict (as I see it).
The Articles set the number to between 3 and 9.
The Bylaws limited the number to 6 (which is a number between 3 and 9)

The Bylaws were more restrictive, but it's not a conflict.
In fact, the Bylaws could specify you only have 3 or 4 directors and still not be in conflict with the Articles.


Why can't you amend the Articles?
Do the Articles prohibit amending or are you specifying that the Articles were improperly amended?

To me it sounds like the wording in the two documents (I'm talking the numbers) were confusing some members. Therefore, to better clarify, the Attorney had the numbers match (vs having a range in one document and a set number in the other document).

Based on what you have provided, I see no conflict over the numbers.

Under those circumstances, I agree that the board's change to 6 is in conflict with your articles. Still have the dilemma of figuring out how to force the board to make a change that is compliant with articles. No statute of limitations on this because did not involve a change to the articles.

No statute of limitation assuming that the articles haven't been amended.
But if the articles were changed to match the bylaws 10 years ago, the door is closed. No longer a conflict. No longer a basis to challenge the legitimacy. Of course you can attempt to get things changed back, but that would take getting enough homeowners to side with you to make the change.

Misread what you meant by 10 years - but the answer is still the same. Today - your amended bylaws and articles say the same thing. No conflict.

EXACT wording. I have looked at other articles they just have a number this is the only one I have found that has a form

So if the Articles said one thing and the Bylaws said another between 2003 and 2013 then yes, I'd consider that to be a little off the rails. But if the Articles were amended 3 years ago so that they were no longer in conflict with the Bylaws and the amendment procedure was done properly with notice, voting and filing requirements all met then I don't see a problem. Do the amended articles still specify there should be an odd number of directors? If that's the case then I agree there should be an odd number. The board can't kick someone out so they'd have to select someone else to join them. What if nobody wanted to join? Awkward. That's why most Articles and Bylaws don't specifically call for "odd" or "even" restrictions on the makeup of the board of directors.

I don't get how the board could be "illegal" and I also don't understand how it is that they can't be recalled. Any director can be recalled in Florida with enough votes/signatures.

I can't get it to copy

"Board of Directors. The affairs of the Association shall be managed by a Board of odd number with not less than three nor more than 9 members."

The amendment made it match the bylaws - which can't be done. In Florida if there is a conflict, and there was the Articles Rule. The bylaws are very clear that the board can change the number of directors, not form, without a vote of the membership.
The whole thing is a mess.

Carol, when you use the word Articles are you referring to the Articles of Incorporation or the Declarations?

I'm not an attorney but it seems that if the answer is AIC, then the answer is simple and fairly cheap. the Board can make a motion to amend them to the original language and if passed, file the proper form with the Division of Corporations. Then amend the bylaws to bring them into compliance. If you are talking Declarations then IMHO the attorney did not have the power to amend them without a proper homeowner vote which depending on how your declarations are written may also require written approval of the mortgage holders.

https://www.florida-incorporation.com/forms/PDF/profit-non-profit/non-profit-articles-of-amendment.pdf

In addition to Article 617 you should also read the 720 Statutes for HOA's (or 718 if you are in a condo) http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799
/0720/0720.html

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0718/0718.html

Geno
Why don't you think the board by itself can't amend the articles or bylaws? Is there something in 720? There is nothing in 617

CaroleS and GlenL, maybe the Articles of Incorporation I've read constitute a small sample size, but the ones I've seen in the last few years (maybe 4 or 5) have amendment procedures that say the owners must vote to approve (with varying percentages required) any changes (with board approval also needed). Same goes for the Bylaws.

CaroleS, what do your Articles and Bylaws say about amendments? FS 617 and 720 don't say much so the details depend on what's written in the documents themselves.

I would never buy a home in an HOA where the board of directors could unilaterally strip me of my property and/or voting rights without the consent of (some percentage of) the homeowners. Do such HOAs exist?