Operating Under Governing Documents the Conflict with State Law

There are no consequences except that the Board needs to remember to review State law.

This is because when a conflict between two documents exist, the higher precedent document must be complied with (control) unless that higher document defers control to the lower precedent document.

The typical order of precedence for HOA/COAs are:

Federal Law
Federal Regulations
State Law
State Regulations
County Codes
City Ordinances
Declaration of Covenants, Conditions and Restrictions
Articles of Incorporation
Bylaws
Resolutions (things like architectural guidelines, pool rules, etc.)

UGH... HOA, not HOW in the last sentence. Why can't we have an edit function??

I would think it would depend on what the board did or didn't do. And what if the governing documents are more stringent than state law? In that case, I would think a judge might let the HOA documents stand, but one never knows, so I'd worry only if someone sues. In the meantime, you're already doing the right thing by trying to update the bylaws (something most HOAs should consider doing anyway). You have 65 homes that didn't respond at all and there should have been some sort of follow-up (maybe they didn't get the information or didn't understand it?)

By the way, I assume your attorney checked if the 2011 law exempted those HOAs established prior to the year this took effect? When our state passed a major HOA law in 2009, that's what it did - homeowners living in HOAs established prior to 2009 had to vote to operate under the 2009 laws. I don't know how many actually did this, since the law talked about things like homeowners having a right to review certain Association documents and that was already written in most governing documents.

Greg,

Beware of attorneys wanting to amend your governing documents! As many here have stated, it's not really necessary. And sometimes, the attorneys make things much, much worse.

Our board is attempting to amend (more like restate) our declaration. So the attorneys have prepared a generic draft which puts EVERYTHING into the proposed amendment. In which case we won't have our articles nor by-laws anymore because the declaration over-rules them.
Examples of items included: 5 pages relating to the ACC, 7 pages on Property Use Restrictions, 6 pages on Assessments, for a total of 44 pages of legalese that will only cause a lot more needed interpretation from those same attorneys in future years. Won't they just love that!

Nevermind a conflict, we have had people suggest we have ours rewritten to remove reference to the Declarant to "make them easier to understand"..........LOL

This is a far more nuanced issue of law than most of the responders here appreciate (at least, judging by their comments).

I don't pretend to be conversant with Kansas law, but in the state of Florida:

1. If the new state statutory provisions only address procedural and/or remedial issues, then the statutory provisions govern over any conflicting Bylaw provisions. (Although it is correct that the Bylaws don't need to be revised to comport with new statutory law in this particular context, it is clearly the better practice, at least in my opinion. Otherwise, your Board and homeowners may be completely misled as to what they can and cannot do under the existing Bylaws.)

2. If the new state statutory provisions address substantive law issues, they may or may not apply to an existing set of documents. If the documents state that they are to be interpreted in accordance with state law as it may be amended from time to time, then the substantive provisions in the new statute(s) are most likely binding on all. However, if that language doesn't appear in your documents -- and instead, for example, your docs state that they are to be interpreted in accordance with the law that existed as of the date they were first recorded -- those new statutory provisions in conflict with what your docs provide may have no effect at all (at least with respect to existing owners; they may also bind future owners under a third party intended beneficiary analysis, but that is another conversation entirely).

In any event, to get back to your specific question: if there is indeed a "direct conflict" between your existing bylaws and state law, and you are a member of the current Board of Directors, the best advice I can give you is to ask the attorney who drafted the new set of proposed bylaws for guidance here.

Agreed that 3 weeks is generally an inadequate amount of time to summon up the majority (or super-majority) support for an amendment.

Did a little sleuthing on Kansas law, and found this:

//58-4614. Same; unit owner voting procedures.

(a) Unless prohibited or limited by the declaration or bylaws, unit owners may vote at a meeting in person, by secret ballot, by absentee ballot pursuant to subsection (b)(4), by a proxy pursuant to subsection (c), or, when a vote is conducted without a meeting, by electronic or paper ballot pursuant to subsection (d).

(b) Unless contrary provisions of the declaration or bylaws so provide, at a meeting of unit owners the following requirements apply:

***
(3) Unless a greater number or fraction of the votes in the association is required by this act or the declaration, a majority of the votes cast determines the outcome of any action of the association.

***

(d) Unless prohibited or limited by the declaration or bylaws, an association may conduct a vote without a meeting. If a vote without a meeting is permitted and used, the following requirements apply:
(1) The association shall notify the unit owners that the vote will be taken by ballot.
(2) The association shall deliver a paper or electronic ballot to every unit owner entitled to vote on the matter.
(3) The ballot must set forth each proposed action and provide an opportunity to vote for or against the action.
(4) When the association delivers the ballots, it shall also:
(A) Indicate the number of responses needed to meet the quorum requirements;
(B) state the percent of votes necessary to approve each matter other than election of directors;
(C) specify the time and date by which a ballot must be delivered to the association to be counted, which time and date may not be fewer than three days after the date the association delivers the ballot; and
(D) describe the time, date, and manner by which unit owners wishing to deliver information to all unit owners regarding the subject of the vote may do so.

***

(h) This section shall take effect on and after January 1, 2011.//

http://www.kslegislature.org/li/b2015_16/statute/058_000_0000_chapter/058_046_0000_article/058_046_0014_section/058_046_0014_k/

Not a Kansas attorney, mind you, but it would appear that unless "prohibited or limited by the declaration or bylaws, an association may conduct a vote without a meeting," and that no specific deadline is prescribed to complete the collection of ballots.