Confused by this Paragraph

Hey everyone. We submitted our Bylaws to our attorney months ago because they were 12 years old an no longer conformed to Kansas Statutes. He added a number of things but it is the one paragraph that I am not following. The law says the board of directors cannot modify and of the governing documents without approval by the home owners. Yet a home owner emailed me a question about this "rule making" paragraph. The interpretation is, we can make rules without their approval but rather that we just notify them. I am sure I am not reading it correctly so I am asking for your opinion:

SECTION 16. RULEMAKING. Before adopting, amending or repealing any rule, the Board of Directors shall give all unit owners of its intention to adopt, amend or repeal a rule and provide the text of the rule or proposed change and a date on which the Board of Directors will act on the proposed rule amendment after considering comments from unit owners. Following adoption, amendment or repeal of a rule, the Association shall notify the unit owners of its action and provide a copy of any new or revised rule.

The Corporation may adopt rules to establish and enforce construction and design criteria and aesthetic standards if the Declarations so provide. If the Declarations so provide, the Corporation shall adopt procedures for enforcement of those standards and for approval of construction applications, including a reasonable time within the Corporation must act after an application is submitted and the consequence of its failure to act.

Chances are high that what the Kansas statutes say is that neither the HOA's Declaration nor the Bylaws can be amended without the consent of the members. But remember there is usually at least one other governing document: The HOA Rules & Regulations. Typically, a HOA Declaration authorizes a Board to make specific Rules & Regulations implementing the goals of the Declaration. The Rules & Regs should not contradict any part of the Declaration or Bylaws. The attorney who prepared this paragraph did so in a way that seems usual.

It might help to write back this member that there is a hierarchy of documents that control what a HOA can do (assuming the Declarant is out of the picture). It's roughly as follows:

Federal law and state law (HOA as an entity has no meaningful control over these)
Municipal Code (HOA as an entity has no meaningful control over this)
Declaration (can be amended by vote of members but not by Board acting alone)
Articles of Incorporation (can be amended by vote of members but not by Board acting alone)
Bylaws (can be amended by vote of members but not by Board acting alone)
Rules & Regulations (often can be amended by Board acting alone, with members' consent not needed)

Hi Dana, for Virginia, I think the following is even better, from http://blog.tarleyrobinson.com/?p=700:

1. Case Law and Statutes (see web site above for specific statutes);
2. Declaration and Plats;
3. Articles of Incorporation;
4. Bylaws;
5. Rules and Regulations;
6. Board Resolutions

Tim (of Virginia) can probably improve on this.

I would also quote --

-- any sections of the Bylaws and Declarations that speak of conflicts between any of the above.

-- how 2. through 6. are amended

Folks can google for {hierarchy HOA "governing documents" statutes} to turn up similar web sites.

In my HOA, amendments to CC&Rs require homeowner vote. Needs 67% of all owners to pass.

Amendments to Bylaws only require homeowner ratification. Needs 51% of all owners to defeat.

Huge difference.

Your %-ages are the same as in my HOA, NpS.

I'm just saying that in some HOAs apparently the board alone can mend the Bylaws. I'm glad ours require a simple majority of Owners.

You're right, NpS, I did misundertstand.

Linda, pardon if I am misunderstanding your question. FWIW recent events at my HOA have led to a study of the case law on discretionary covenants, including covenants that permit amendment. Nationwide the case law says that, where a proposed amendment effectively defeats the original scheme or plan envisioned by the original covenants, or where the amendment defeats the covenants in general, then the amendment is not allowed. That is, upon court challenge, a court would throw out such an amendment. It's partly to preclude a tyranny of the minority, given all members signed on agreeing to comply with the Declaration, Articles, and Bylaws.

Me thinks this chat has veered from the OP's question which was concerning Rules/Regulations, not Covenants nor Bylaws.

Problem is many think them all the same and the drift of this chat enables such thinking.

Gregg posted "We submitted our Bylaws to our attorney months ago because they were 12 years old an no longer conformed to Kansas Statutes. He added a number of things but it is the one paragraph that I am not following."

Bylaws do not have to be amended just because there are new state laws.

Beware of attorneys amending documents!