By-Laws

Started by ConchoP • 22 replies • 1423 views

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ConchoP (Texas)
Posts: 208

Posted:

I apologize in advance, we are newbies .... but could some explain what this means exactly?

Rules for meeting. The board by adopt rules for conduct of meetings: member,board,committees?

Does "conduct' here mean how the meetings are to be ran, such as call to order...etc???

At our first ever board meeting the board had on the agenda
No video or recording of meetings...people need to act in a orderly fashion, if members become disruptive, they will be expelled.

Our By-Laws do not address these issues so I was wondering they fall under the "Rules for Meeting clause."

KerryL1 (California)
Posts: 14,550

Posted:

Bylaws usually replicate (copy) state laws, often your state's corporations codes. HOA bylaws contain how elections for directors should be held; how board officers are selected & their duties; how many members of the board of directors must there be. How to fill vacancies on the Board; director qualifications (if any); now many board meetings must be held each year, etc. They also cover the different types of meetings, e.g., regular meetings of the board; special meeting of the board; emergency meetings of the board and meetings of the membership (usually annual meetings & elections).

(There may be other topics like h'owners' rights to inspect records.)

The bylaws MIGHT say that Board meetings should be conducted (organized) using Robert's Rules of Order or some other accepted parliamentary procedure. THIS has to do with calling the meeting to order, motions, seconds, what should be in meeting minutes.

You wrote: "No video or recording of meetings...people need to act in a orderly fashion, if members become disruptive, they will be expelled."
The meaning of the word "conduct" here seems to be behavior at meetings. Our Board has such rules for behavior (or comportment) on the back of the agendas that h'owners receive when they attend meetings. they include when members ( homeowners) may speak at a board meetings (only during Open Forum), that they must raise their hands and be recognized by the presider, etc.

But I might be misunderstanding your question, Concho: "Rules for meeting. The board by adopt rules for conduct of meetings: member,board,committees?" It matters a lot whether you mean conduct at (behavior) of "conduct of," which is odd wording but would seem to mean the sequence of agnes items etc as typically found in Robert's Rules.

It would help me if you'd give us the exact wording of the agenda item.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Concho

Typically a BOD can have a set of Rules and Regulations (R&R's) that clarify Covenants/Bylaws but cannot contradict Covenants/Bylaws. R&R's can be done by the BOD alone and do not require owner approval.

Examples:

1 The BOD via R&R's can set the pool hours but they could not eliminate the pool.

2. Some laws require an open comment time for owners at BOD Meetings but do not specify how long and when. A BOD could make a R&R that owner comments will be limited to one minute and will be heard by the BOD 1/2 hour prior to the BOD Meeting.

One contentious area is a BOD trying to set a R&R that limits rentals when the Covenants say nothing about such. They generally do not have the power to do so.

Another BOD, or the same one for that matter, can come along and change any R&R without owner voting or input.

Hope this helps.

ConchoP (Texas)
Posts: 208

Posted:

On that back of the agenda they stated: Members can observe the board meeting, but can not vote. No video or recording of meeting will be allowed...people need to act in a orderly fashion, if members become disruptive, they will be expelled.

As KerryL1 mentioned our Bylaws do state: how elections for directors should be held; how board officers are selected & their duties; how many members of the board of directors must there be. How to fill vacancies on the Board; director qualifications (if any); now many board meetings must be held each year, etc. They also cover the different types of meetings, e.g., regular meetings of the board; special meeting of the board; emergency meetings of the board and meetings of the membership (usually annual meetings & elections).

In our Bylaws also has a Rules for Meeting clause: Rules for meeting. The board by adopt rules for conduct of meetings: member, board, committees.

I understand the statement they wrote about "people need to act in a orderly fashion, if members become disruptive, they will be expelled" would fall under the Rules for Meeting Clause.

I just don't understand how they can say Members can observe the board meeting, but can not vote. No video or recording of meetings. Other them using the Rules for meeting clause to justify the statement.

SheliaH (Indiana)
Posts: 6,964

Posted:

The Board of Directors is there to make decisions on behalf of the association (that's why it exists), so it's not necessary for the homeowners to vote on agenda items (they're also homeowners, so whatever they vote on will affect them too).

As a practical matter, very little, if anything would get done, if homeowners voted on everything. Unfortunately, apathy is a huge problem in HOA communities and it's very difficult to get people to even show up at the annual meetings, let alone a monthly or quarterly board meeting. Some may or may not read the related documents on an association issue, which is vital if you're going to make an informed decision or have a healthy debate. Others are only interested in the cost - if there's any hint assessments will go up, the answer is always no, regardless of what the money will cover or why increases are necessary. That can cause huge problems down the road when repairs and replacements can't be avoided - and because everyone always voted no, there's not enough money in the budget and so you'll need a special assessment. those have to be paid in addition to regular assessments (which might increase anyway because the association still has other monthly expenses that must be paid).

Regarding the video/audio recording, there are a number of conversations on this website about those pros and cons, so I won't get into them here - you may want to do a search and read up on a few and then you can make up your own mind.

Not voting during a regular board meeting doesn't mean you don't have any say on anything. Hopefully, your board meetings also feature a resident forum where homeowners can speak up on association issues. Depending on the number of people there, you may have a time limit so everyone gets a say - the board may not make a decision then and there. Sometimes the issue is already an agenda item or it requires more review before options are considered.

Homeowners can also vote to elect or re-elect board members (you might even run for a spot). Those special assessments I mentioned earlier usually require a homeowner vote, as do changes to your Bylaws or CCRs (the CCRs dictate how the common areas are used and that's where you'll see rules regarding pets, parking, rental restrictions, etc.)

If you're new to HOA living, why not attend a few meetings and listen to the proceedings. That'll give you an idea on how things are run, and you can always talk to a board member afterwards if you have questions. Better yet, if there's something in your community you're interested in, see if there's an advisory committee you can join to explore that issue in more details. That'll give you even more insight on how and why the board does what it does (and sometimes not, in which case, you'll know exactly what you need to ask about during resident forum). Good luck!

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

KerryL1 (California)
Posts: 14,550

Posted:

Concho, I still have trouble with your quote here: "The board by adopt rules for conduct of meetings: member, board, committees." Does it say "may" instead of "by"? And "conduct of meetings" doesn't quite make sense. Maybe it says "conduct [meaning behavior] AT meetings"?

As Sheila states, meetings of the Board are exactly that. In many states, homeowners (members) may attend them, but they may not speak (AZ is none exception) while the Board is discussing and voting on agenda items. Many states, per Sheila, do require that there be an open forum period when non-directors may speak, ask questions, etc. Please read the rest of Sheila's very useful remarks.

Some states do not require meetings of the board to be "open" to the rest of the member/homeowners, for example, SC, PA & NY. Some refer to them as "closed meeting" states.

A non-director recording a meeting isn't allowed at my HOA and many others. Some states' laws do permit recordings. The manager or board secretary writes minutes which you can read if you must miss meetings. They should only contain important info, in other words, the decisions the Board makes. As Sheila advises read the many discussions about recording meetings on that topic.

ConchoP (Texas)
Posts: 208

Posted:

This is a our first board ever... the board voted in my the the developer because he has the most votes. In Texas we must have open board meetings.
I guess I didn't understand.. thank you for the clarification. I'm assuming then in Texas homeowners do not vote on anything but board members?

KeeryL1; I double checked and is it says: Rules for Meeting: "The board may adopt rules for the conduct of meetings of member, board, committees."

SheliaH (Indiana)
Posts: 6,964

Posted:

This got scrambled - the board voted in my the developer.....? Are you saying the developer voted in all the board members because it has the most votes?

If your community is still under developer control, that adds another element. What I said earlier still applies, but because the developer in your community has the most votes, he may well get the final say depending on what the rest of your documents say - and of course, just because he basically appointed all these people doesn't necessarily mean they'll rubber stamp whatever he wants.

Usually, developers control everything until the community's turned over to the homeowners - they may appoint an initial board before going off into the sunset to get things underway. The Bylaws and CCRs are usually boilerplate things that favor the developer, so it's important for first ever board members to educate themselves on best practices for HOA management, not to mention preparing the community for the developer's eventual departure.

Unfortunately, preparing the homeowners isn't always a developer's strong suit (they want to get their money and get out and let the homeowners figure it out). You might want to look around on this website for conversations on developers turning the community over to homeowners and see what did/didn't/should/shouldn't have occurred, so you can keep an eye out for weirdness in your own community.

One thing about rules I forgot to mention - the board can enact rules, provided they don't contradict the Bylaws or CCRs. For example, the board could say it will meet on the 2nd Tuesday of the month, the meeting will include a resident forum lasting 15 minutes, offensive language, name-calling and fistfights are prohibited, etc. Rules are usually adopted via a board resolution - subsequent boards may or may not want to modify them. Sometimes board resolutions aren't enough - a bylaw or CCR may need to be modified, dropped or established to deal with something vital (e.g. prohibiting convicted felons from serving on the board).

So, as you can see, there's a lot to HOA living, but it doesn't have to overwhelm you. In fact, you're on a good start if you're reading your documents and asking questions. If the developer is still around, you may want to ask about a target date as to when the community will be turned over and start paying close attention to what's going on at these meetings. Let the board members know you're willing to help in some way and let them know your background - you may become a board member yourself one day!

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

KerryL1 (California)
Posts: 14,550

Posted:

Does sound like you're still under "developer control" in your HOA Concho. OR....the developer owns so many homes/units that he has enough votes to get his way.

What homeowners (members) may vote on and what the board of directors may & may not vote on probably is in your CC&Rs (also known as: covenants; declaration; restrictions).

All homeowners elect the Board to make decisions about their HOA. Homeowners usually only may vote on a few things like electing directors. Also, depending on TX laws, h'owners might vote on special assessments above a certain amount or raising dues above a certain percent in one year. Homeowners do vote to change or amend the CC&Rs and usually the Bylaws.

If your HOA has a property manager, she or he can help you understand your various governing documents.

ConchoP (Texas)
Posts: 208

Posted:

You are correct about we are under developer control, Our by-laws are the only document that says anything about how the HOA is run. Our CC are really just the deed restrictions, some road maintenance, HOA fees, billing of fees, liens, and a few other items such as compliance etc...

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Cancho

When under developer/declarant control the Covenants typically give them control in one form or another like they get 25 votes per lot to you an owner, one vote per lot or some such wording. Look for Class A and Class B voting rules in the Covenants.

Even when under owner control, owners do not get to vote on everything. Owners get to elect a BOD of their choosing thus they ultimately control. Owners can also recall BOD Members as in kick their butt(s) out.

Also under owner control, owners typically are not allowed to speak on any subject at any time. Many will have a Question and Answer session but when the meeting convenes, the BOD controls.

Recording meetings is allowed and not allowed in some states. Not all states agree on this.

Many experienced association buyers will not buy in a developer/declarant controlled association. Developer/declarant controlled associations are typically the ones with major issues as the developer/declarant can pretty well do as they wish no matter what you think or were promised. As an example, ust because you were promised a pool, tennis, etc. does not mean the developer/declarant has to deliver such.

KerryL1 (California)
Posts: 14,550

Posted:

I'm thinking that somewhere, Concho, there is something written about responsibilities of the Board of Directors. The list would probably include, paying taxes, maintaining the common areas, arranging for trash removal and so on.

JanetB2 (Colorado)
Posts: 4,219

Posted:

I would suggest your BOD review your State Laws. Keep in mind that in many instances unless the State Law defers to the CCR's the State Law is supreme rule for situations. TX is a "one party" state with regards to recording conversations and most states anymore do ALLOW recording of HOA meetings. While I could pull up most State Statutes easily ... TX is more convoluted and a royal pain. However, I did find the following reference and which stated:

Recordings: Video or audio recording is not prohibited in HOA meetings.

Sources: Texas Property Code chapters 81, 82 and 209; lawyers Gregory Cagle and Mitchell Katine; Texas Community Association Advocates

So ... Feel free to spend time reviewing the Sources. I would contend per information available that NOT allowing members to record HOA meetings is illegal.

ConchoP (Texas)
Posts: 208

Posted:

From what I see TPC 209.007 (C) say if you meet before the BOD in a Hearing you are allowed to record the meeting, we have that provision in out Bylaws

Chapter 81 & 82 is in reference to Condos

I could be wrong; I'm not seeing a source that pertains to residential HOA recording of a Board meeting.

JanetB2 (Colorado)
Posts: 4,219

Posted:

This article down a short distance on the right side in the bold print notes some of TX new laws added in 2013 and is where I saw the notation I posted above: http://www.houstonchronicle.com/news/houston-texas/houston/article/Keys-to-unlocking-your-rights-with-HOA-4547900.php

As I also said above TX is a One Party state with regards to recording conversations: http://www.dmlp.org/legal-guide/texas-recording-law

Public Meetings

Sound and video recording devices may be used at public meetings (i.e., meetings of a governmental body required to be open to the public by law) in Texas, although the agency or other governmental body holding the meeting may impose "reasonable rules to maintain order at a meeting." Texas Gov't Code § 551.023(b).

In TX citizens can personally record or video a Court hearing as long as they submit a request at least 5 days before the hearing.

I would recommend not having any rule and just ignoring. Most people are not going to be recording meetings and when you highlight you have such a rule it makes others suspicious you are trying to hide something.

ConchoP (Texas)
Posts: 208

Posted:

JanetB2 I do remember seeing exactly what you stated... Can you please explain what you mean when you say Tx is a one party state.

I apologize for not knowing...I'm still learning.

"I would recommend not having any rule and just ignoring. Most people are not going to be recording meetings and when you highlight you have such a rule it makes others suspicious you are trying to hide something."

I might bring this up at our next meeting, it was what the board stated with the agenda.

ConchoP (Texas)
Posts: 208

Posted:

In Addition ,

Could the board use the line in our ByLaws that states Rules for meeting. The board by adopt rules for conduct of meetings: member,board,committees?

As a way to justify the no video no audio recording rule they have?

TimB4 (Tennessee)
Posts: 21,062

Posted:

Quote:

Posted By ConchoP on 01/20/2017 6:04 PM
In Addition ,

Could the board use the line in our ByLaws that states Rules for meeting. The board by adopt rules for conduct of meetings: member,board,committees?

As a way to justify the no video no audio recording rule they have?

Unless the applicable statutes allow members to record a meeting (some States do have such statutes, but I have not looked at the applicable TX statutes), then yes - they may utilize such language to make the rule.

Question: Is this an issue for you because you wanted to record a meeting or is it something that simply peaked your interest?

If it simply peaked your interest, I'd be more interested in the finances and enforcement issues then this.

If you did want to record, why?

JanetB2 (Colorado)
Posts: 4,219

Posted:

Concho:

A One Party state means that only one person who is a party to a conversation needs to be aware of recording. For example if you and I were having a conversation I could legally have a tape recorder hidden in my pocket and record the conversation without your knowledge. I as one party to that conversation would be aware of the tape recorder, but you as a second party to the conversation would not know you were being recorded. In TX it is perfectly legal.

If you have a rule stating no recording of conversations and someone hides a tape recorder in their pocket what could the BOD do about it? Essentially nothing; therefore, why have said rule and make it a big issue with the membership?

ConchoP (Texas)
Posts: 208

Posted:

Thank you for clarify JanetB2, that makes since.

TimB4: I'm very interested in everything this board does. Our board was basically hand picked by the developer, and according to our Bylaws, the board will be that way for a long time. Util the developer stops buying property and building. Almost all of these board members never came to start up meetings, nor did they come to any of the elections that they were nominated for. They didn't even exchange phone numbers or emails until we made a stink on Facebook and their wives didn't like it and made the do something. So when they start making rules that are not in our bylaws or CC I"m going to question it.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Ahhh .... One of those Developer control issues:

Been there and done that and for awhile it was not fun. Since you are a newbie I will give you some suggestions to hopefully make your life easier down the road and maybe avoid issues.

If it is going to be awhile I recommend spending the time educating yourself and other owners. Buy a large binder and tabs (my binder ended up 3-4" thick). Put an extra copy of your governing documents in the binder behind appropriate tabs for the various documents. Print a copy of your current State HOA laws and add to the binder. Read through all documents carefully and when you see the words "Developer", "Declarant", or "development period" highlight those words with say an orange highlighter so it stands out. Read again with a different color highlighter and highlight the words such as "Owner" or "Member". Read again with different highlighter and highlight the words such as "shall", "shall not", "will", "will not", "must", "must not". The more times you read it the more you may understand with regards to the various rights and obligations and which the highlighted text will help. If you have questions on some words and their meanings always first look at the top of your statutes at the Definitions. Keep in mind that State Law supersedes and controls above CCR's unless the CCR's defer to them with statements such as ... "unless otherwise noted in the "CCR's" or "noted in the governing documents"". Sometimes Developers will put items in CCR's which they know or should have known violate State Laws because they know most people do not know otherwise and will not educate themselves.

The reason you want to have the words "shall", "shall not", "will", "will not", "must", "must not" highlighted is possibly if those sections are violated using those words ... there is a possibility that other laws which could be criminal (i.e. theft of contract) or fraudulent (i.e. real estate fraud) might also be violated. I have found that to be the case in my state, so giving you a heads up.

CCR's are attached to property titles and filed with the local County Records. Many County Records have websites where citizens can search to see a list of documents filed and for HOA usually filed under the HOA name. I would recommend at least once per month to check your County Records to see if the Developer filed any documents or amended CCR's, and if he did obtain a copy from the County Records. Sometimes documents will be filed behind your back without your knowledge. In some states if documents are wrongly filed and nobody does anything to dispute it within say one year ... it possibly can be too bad, so sad.

The one main thing I learned is KNOWLEDGE is POWER. The more you know regarding your documents and most importantly your State Laws the more you can control any situation. I have debated Statutes with many attorneys and even my State Attorney General's office and sometimes I admitted they were right while other times they themselves admitted I was right. We have become a society so buried in many laws that no attorney can be all knowledgeable anymore.

I wish you the best of luck ...

ConchoP (Texas)
Posts: 208

Posted:

JanetB2,

I have do have a binder with our By-Laws, a copy of the Deed Restriction for Section 1 (we have 8) and a copy of Texas Property Code 209.
I highlighted all the title of each section to help me find things faster. I agree knowledge is power and I"ve been doing my homework for a long time now.

Homeowners did understand anything...we all kept saying nothing is getting done with an HOA...and didn't understand why... and we should meet. But no one would find a place... so I go tried of and found a place. about 60 homeowners showed up. Since then we learn that because the developer missed is date for annual homeowners meeting so technically we had no board. That was in September, by November we elected our first board - yes developers choice but it's a board.

We had our fist board meeting Jan 10th ... and the new board understood they were in office from Nov. until the Annual Meeting, and annual homeowners meeting is to be held between Feb. 1-15. They just didn't understand that we had to have another set of elections at that time. They didn't even talk about elections at the meeting. So we asked them about elections and they were like oh yea, well do something about that next month.... hahaha, well we said you have to have an election and you have 4 days to get letters out to them membership or you will not get setting on the board... they didn't understand. I said the reason homeowners moved forward with electing you back in Nov.was we would have a functioning board and the board pay for postage for the elections, because it cost about $200 per mailing and we will not meet a quorum, and it will take at least 3 mailing. We got our letter out on the 12th...

I understand they just don't know and are willing to have help and learn so it all good. Long Road ahead.

RicO
Posts: 29

Posted:

The board by (sic) adopt rules for conduct of meetings = conduct here means how the meetings are to be run, such as call to order, etc...???

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