Bylaws - Modifiable by Board or Membership?

Hi, again, All,

Recall my HOA, of which I am a Board member and Secretary, lost all records from just after the formation (1995) until 2015 - apparently, the President at the time died suddenly and his home was cleared/cleaned by relatives very quickly. Apparently, the Association had been operating under a set of Bylaws dated 1998 - the original Bylaws from the developer were dated 1995. There is no record of the original Bylaws being modified - the 1998 version, according to some of the original residents, "just appeared."

Neither the original Bylaws, nor the 1998 version are noteworthy in any way - differences in the number of Board members (3 with allowance to increase to 10 "from time to time" via a bylaws amendment vs 5-9), approval criteria of future Bylaws (by the Board vs by 3/5 of the community at an annual meeting), annual meetings in original and annual and quarterly meetings in the 1998 version (they MAY have meant Board meetings, but it doesn't say that although it infers it later), quorum (51% of membership vs "by the members present"), little stuff like Sergeant and Arms and Chairman of the Board in the 1998 version but not in the 1995 version, and a big item - the original Bylaws are silent on Board meeting attendance, where the 1998 version notes clearly "The meeting shall be closed to the general membership."

The Board discussed the way forward over two meetings - we searched for any records from any current or past resident and found almost nothing. Accordingly, I volunteered to rewrite (with another volunteer) the Bylaws. The entire Board agreed we should only modify them where there was a legal reason (i.e. excluding members from attending Board meetings), or because something in the 1998 version was grossly inaccurate or uncharacteristic of common accepted Bylaws (i.e. there being positions of Sergeant at Arms or Chairman positions), or to repair language issues. In other words, given the lack of records circumstances, try and maintain the tone of the original and the rewrite, but fix the things that needed to be fixed.

There are a few areas where I could use your input:
1. with 189 single family homes of demographically older residents, what is a good number of bodies for a Board?
2. I would like to specify that only Officers can be on banking authorization lists
3. Should the new Bylaws allow modification by a percentage of the Board, or of the Membership (almost no one attends and remember, this is a VOLUNTARY association (dues are voluntary) and mandatory CCRs
4. What about the quorum requirements? Since so few attend the annual meeting, is it best to simply allow a majority vote of those attending?
5. Should I call out the interval for Board meetings? Having so few as quarterly has allowed this neighborhood to drift off topic and focus - monthly is a way better solution, I think.
6. The 1998 version calls out only the ACC (it is in the CCRs) and an audit committee - should I add in things like Social, Beautification, etc, (we have all of these) that might keep future Boards focused?
7. Should the Bylaws contain reference to Roberts Rules of Order?
8. Anything else you feel is warranted in our circumstances.

Thanks, as always!

We require BOD meetings quarterly, but they are free to meet as often as they like. This way we can skip December (which is too busy to get on anyone's schedule) and usually July when everyone is on vacation. We aren't in violation of the rules this way and can schedule extra as needed.

Just occurred to me - given this is a voluntary Association, should I call out what constitutes a Member? (i.e. payment of dues)

Should I call out that Board members must be members of the Association in good standing - i.e. have paid dues? Would they be automatically dropped from Board role, or would it require a vote?

George, I don't know if this directly applies to your situation but I found it yesterday while searching for something else. You may find it useful if you haven't seen it before. -->Do Voluntary Civic Associations Have Authority to Enforce Their Covenants and Restrictions Over Real Property?<--

I left out an item should have included ...that the original Bylaws for which we have an audit trail allow the BOD to modify the Bylaws. The 1998 version dropped this. This may be normal for turnover from a developer to the first Board so the new Board could get things rolling.

Our intent is to ensure we are compliant with state laws (no o, and as aligned as reasonable with the 1998 version, even though we have no idea where they can from. Kinda finding a middle ground.

The community is rather apathetic, partially due to the age demography. Getting 51% of members as a quorum would likely be impossible - perhaps this is why it was dropped in the 1998 version?

By specifically including additional committees, our intent was to increase motivation - see my comments on apathy 😀

I think you might have that backwards? You said originally 'BOD' could modify by-laws by themselves, and that was 'dropped' in 1998, which would mean it reverted to membership approval. I can't see your docs, but the Declarant usually has powers that are not passed on beginning with the first annual meeting and thereafter.

So, when I look at mine, I see several amendments the Declarant made, no approval required, but thereafter it is.

A Resolution can be done w/o owner approval in certain circumstances. Changes required by state and federal law, to correct typographical and similar errors, and to exercise powers directly given in the by-laws.

Unless the community was still under developer control as the OP alluded to.

Check with your county land records. From my knowledge the By-laws should be a matter of record with the county & any changes should be documented & filed with the county to be legal.

Ours were recorded in 1981. As were all amendments by the developer and the BODs that followed. This is not a new trend, it was negligence if anyone failed to do that before. Have you looked at your state laws regarding all these matters?

Found another item in the 1998 Bylaws that was not in the original Bylaws - under Powers and Duties of the Board of Directors ...

"(h) recommend the purchase or sale of property of the Association to the Members. "

The community has a common area entrance with a sign and some lighting. It also owns (the property holders, not the Association), an approximately one acre park that was deeded to the 189 property holders - it is recorded as an "undivided interest" - and notes also that that it cannot be commercially developed.

Given the above, is there a reason to retain the ability power to recommend the purchase or sale of property?

I don’t think an attorney is needed in basic activities like this ...hopefully, we’ll get a clean and simplified set together with lots of critical assessment by the Board.

CC&Rs definitely need legal review!

Have liability insurance as well as D and C insurance.

Pretty clear we have the ability to amend - we’ve done our homework.

Again, this is pretty basic stuff.

Janet - see the posts in this thread.

The original Bylaws specify the Board to amend. The 1998 unknown source Bylaws specify the Association - in our opinion, these are "tainted" by having zero proof they were approved by ANYONE - i.e. zero records and no one remembers them being updated.

The amendment we are working on is almost exactly the same as the originals - with modifications to ensure we are compliant with Florida law - and, cleaning up some cumbersome language - while increasing the number of Directors from three (original) to five-seven (we haven't decided yet).

Yes - odd number!

Five is easier.

In theory, the smallest odd number would be ideal ...other than 1.

Having work spread makes sense, but that should, in a perfect world, be accomplished by committees vice Board Members.

Five allows all four common Officer positions be Dirctors, as well.

If a larger than 5 or 7 is nominated, then Bylaws could specify that the 5 or 7 with the largest number of votes would be elected.

BUMP - status added!

Good job, George!