Bylaw & Quorum question

Started by RobinL7 • 11 replies • 1361 views

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RobinL7 (North Carolina)
Posts: 45

Posted:

Our association is attempting to update/rewrite our Bylaws, they are old and need to be updated. Two questions:

(1) I would prefer words that are not proper nouns overall to not be capitalized for readability. Words for example such as "members" and "owners". A few people believe this standard passage below, that I have found in a number of Bylaws for LOAs, means that all words that are defined in the Covenants are to be represented as capitalized throughout the new Bylaws. I do not agree, I think this passage (below in quotes)means that any words/terms capitalized in the Covenants' "descriptions" have the same meaning in the Bylaws, they are "definitions" and therefore their defined meaning in the Covenants shall be the same meaning in the Bylaws. I believe these words are not required to be capitalized in the Bylaws. What do you think?

"Section 3. Definitions. Unless otherwise specified, the words used in these Bylaws shall be given their normal, commonly understood definitions. Capitalized words shall have the same meaning as set forth in that certain Amended and Restated Declaration of Covenants, Conditions and Restrictions for..."

(2) Also, while researching this issue, I read over a number of other Bylaws for various LOAs and it appears that the required quorum for membership meetings is often as low as 10%. Back in 2011 we voted a change of quorum for membership meetings from 50% to 33%. Some people want to change the quorum back to 50%, I would prefer to keep the quorum percentage at 33%. I am a strong advocate for member participation! However, I believe that there is a balance as well in regards to making sure the Board can conduct business even when there is apathy for participation by landowners. The statute for LOA quorums in our state requires a minimum of 10% membership for a quorum.

Thank you, this Website has been so helpful for me in the past, I appreciate it!!

Robin

KerryL1 (California)
Posts: 14,550

Posted:

Our Bylaws also capitalize Members and Owners. Can't say that it bothers me.

Our required quorum of members for voting is 25% of qualified Owners. I like that amount because we don't have to worry about making quorum for Members to have a valid election. Of our 200+ condos, about 50% do vote on director elections, so it isn't a problem for us, but still....

RobinL7 (North Carolina)
Posts: 45

Posted:

Thanks Kerry for your comments, especially on the quorum issue, it is very helpful to find the "norm" on this. 25% sounds like a good percentage. I like 33% for our community, we have a LOA with a little over 100 members and we can often get 33% to participate, but 50% is difficult sometimes.

In regards to the capitalization issue, the question is not about what style you prefer in regards to capitalization practices, it's about whether the statement, that is in almost every Bylaws I have read recently, requires that words in the Bylaws be capitalized due to the fact that these words are definitions in the CC&Rs. Again it's not about what "bothers" someone it's about what this passage means. Here is the passage again. Thanks, Robin

"Definitions. Unless otherwise specified, the words used in these Bylaws shall be given their normal,commonly understood definitions. Capitalized words shall have the same meaning as set forth in the Declaration of Covenants, Amended and Restated Declaration of Conditions and Restrictions for...(LOA name)

TimB4 (Tennessee)
Posts: 21,061

Posted:

Robin,

I believe that this was done to minimize the need to redefine the same terms within the Bylaws. Simply a way of saving a bit of time. Otherwise, for example, it would be normal to repeat the definition of Members in each document. With that wording, a reader now knows that Members is as defined in a separate document.

Keep in mind that a quorum is the minimum needed to conduct business. It does not necessarily change what is required to adopt changes to documents.

We have a quorum of 10% for general membership meetings.
Even with this small quorum, we still need 50% of the membership to approve changes to the Bylaws and 2/3 of the membership to approve changes to the CC&Rs.

What this small quorum does is allow elections to take place when there is an apathetic membership. Our Association has typically only had a little over 20% represented in person or by proxy at general membership meetings. If we needed 33%, we would never have elections and the current Board would be able to appoint whom they desired to replace them.

I prefer the smaller Quorum requirement.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By TimB4 on 02/16/2017 7:58 PM
Robin,

I believe that this was done to minimize the need to redefine the same terms within the Bylaws. Simply a way of saving a bit of time. Otherwise, for example, it would be normal to repeat the definition of Members in each document. With that wording, a reader now knows that Members is as defined in a separate document.

Keep in mind that a quorum is the minimum needed to conduct business. It does not necessarily change what is required to adopt changes to documents.

We have a quorum of 10% for general membership meetings.
Even with this small quorum, we still need 50% of the membership to approve changes to the Bylaws and 2/3 of the membership to approve changes to the CC&Rs.

What this small quorum does is allow elections to take place when there is an apathetic membership. Our Association has typically only had a little over 20% represented in person or by proxy at general membership meetings. If we needed 33%, we would never have elections and the current Board would be able to appoint whom they desired to replace them.

I prefer the smaller Quorum requirement.

Good information. Many confuse the two.

SheliaH (Indiana)
Posts: 6,964

Posted:

A 10% quorum for membership meetings is fine (that's what we have for our annual meeting quorum). I would make it a little higher when it comes to homeowner approval of Bylaw/CCR amendments and special assessment approval - no more that 50% should be sufficient. It doesn't take away anyone's right to vote and if you really want something or not, you will get off your ass and participate. In looking at our own struggle (and failure) to update our documents, I personally believe that percentages like 75% or more are virtually impossible to achieve, so a lower percentage will keep things moving.

As far as readability goes, perhaps section 3 should list and define certain terms that will be used throughout the document (e.g. member and owner shall mean the person(s) or entity whose name is on the title). There's also been a movement to make most legal documents more readable (e.g. getting rid of words like thereto, wherefore, etc.), so ask your attorney to do whatever's necessary to write the amendments in plain English (this may mean working more closely with the paralegal who usually writes these things anyway).

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

RobinL7 (North Carolina)
Posts: 45

Posted:

Thanks for all the great comments I really appreciate them. Tim, our statute here in NC states that when you don't have a quorum the meeting is to be rescheduled for another day soon after, at this meeting the quorum is cut in half, if a quorum is still not met then another meeting is scheduled and the quorum is halved again. This way eventually the LOA can hold a meeting and conduct business.

However I agree with you that the quorum should be a lower % to ensure that the Board can conduct business without too much inconvenience for the board members. So I will continue to advocate for 33% rather than 50% for our new Bylaws.

Also the comment about readability and plan english for governing docs is a good lead.

Thanks again to all. Robin

TimB4 (Tennessee)
Posts: 21,061

Posted:

Robin,

Is calling another meeting a requirement or an option?

We have a similar provision but only for raising assessments or imposing a special assessment (where are quorum requirement is higher). However, the language provided makes it an option, not a requirement.

RobinL7 (North Carolina)
Posts: 45

Posted:

Hi Tim, Good question. The NC Planned Community Act was passed in 1998 - 1999. This stature, 47F, dictates much of the language for our new bylaws...But you are right, rereading the statute and the bylaws it states that the "that meeting MAY be adjourned to a latter date by the affirmative vote of the members present". Should we change the word "may" to "shall"?

Thanks! Robin

TimB4 (Tennessee)
Posts: 21,061

Posted:

Quote:

Posted By RobinL7 on 02/18/2017 10:32 AM

Should we change the word "may" to "shall"?

KerryL1 (California)
Posts: 14,550

Posted:

I'm with Tim.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By TimB4 on 02/18/2017 2:14 PM

Posted By RobinL7 on 02/18/2017 10:32 AM

Should we change the word "may" to "shall"?

I agree do not want to change.

"May" ... is not definite and allows choice.

"Shall" ... is definite and is similar to "Will" or "Must".

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