Bylaws language assistance

Started by GeorgeS21 • 47 replies • 1048 views

💬 Join us to post & get advice from 50,000 HOA & Condo leaders.

⚡ Takes 30 seconds

Already a member? Log in

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Hi All,

Been evaluating options for the Bylaws rewrite I have been tasked to complete. Could you help with a couple of sections?

Remember - voluntary HOA of 189 single family homes in Florida with mandatory covenants.

First relates to Director election - was trying to capture all the possible pitfalls ... trying to keep it simple and short, but don't want to build in anything that will cause messiness in the future.

1. Precursor to the discussion is the Definition of a Member article from the Bylaws ...

"ARTICLE II
DEFINITION OF MEMBER

Membership in the Association is open to all property owners within the XXX Planned Unit Development. Membership is defined as having paid dues for the year under consideration."

2. Election article ...

"ARTICLE IV
BOARD OF DIRECTORS SELECTION AND TERM OF OFFICE

Section 1. Member. The affairs of the Association shall be managed by a Board of Directors, consisting of an odd number of not more than seven (7) Members of the Association, who must be, and remain, in good standing during their tenure.

Section 2. Term of office. The term of office for all Directors shall be for one (1) year, if elected at an annual meeting, and for the remainder of the election year for Directors subsequently appointed by the Board of Directors to fill openings.

Section 3. Removal. Any Director may be removed from the Board, with or without cause, by a majority vote of the Members of the Association at a Special Meeting called for that purpose, or by provisions of Florida Statute.

Section 4. Compensation. No Director shall receive compensation for any service rendered to the Association. However, any Director may be reimbursed for actual expenses incurred in the performance of duties.

ARTICLE V
NOMINATION AND ELECTION OF DIRECTORS

Section 1. Nomination. Nomination for election to the Board of Directors shall be made by the Nominating Committee, or from the floor, at the annual meeting. The Nominating Committee shall consist of a Chairman and at least two others, all of whom must be Members of the Association. The Nominating Committee shall be appointed by the Board of Directors. The Nominating Committee shall present nominations to the membership at the Annual meeting. Nominations from the floor may be made by any Member and need not be seconded.

Section 2. Election. Election to the Board of Directors shall be by secret written ballot. If more than seven (7) Members are nominated, the Members obtaining the largest number of votes shall be elected. If an even number of Members are nominated, the next smallest odd number will be elected to the Board of Directors. There shall be only one vote per property, either in person, by absentee ballot, or written proxy. Votes shall be counted and verified by the Secretary and the President of the Board of Directors."

KerryL1 (California)
Posts: 14,550

Posted:

Looks pretty good, George. You sure are putting a lot of work into your HOA!

How are absentee ballots defined? In your HOA? In FL?

If the nominees aren't known until the annual mtg., how can anyone vote in advance by absentee ballot.

Since we send out the names of self-nominated candidates and ballots way before the annual mtg., because most Members here vote by US mail, our Nomination Committee meets before that mailing. Their only function is to make sure the candidates are Owners and are in good standing. We're redoing our bylaws too and will eliminate the Nomination Committee requirement as it's our PM, who confirms the status of candidates.

For now, though, our Nomination Committee members may not be candidates or co-owners or relatives of candidates.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Many associations have done away with Nominating Committees and allow for any owner in good standing to be nominated by another owner in good standing and this would be at anytime prior to or at the Annual Meeting.

SheliaH (Indiana)
Posts: 6,964

Posted:

I'm not a fan of removing directors without cause (if you don't want someone on the board, just vote, him/her out at the next election, otherwise things could get ugly), so I hope elsewhere in your documents that process is more fleshed out.

Another suggestion - in addition to reviewing your draft with an attorney (just to make sure things jibe with Florida law), you might want to consider checking if there's someone in your area who's a member of the national association of parliamentarians. This is a non-profit organization of people who receive training in parliamentary procedures. One of the members of my wine tasting group is also a member and she was a huge help when we revised the organization's bylaws (since it's also non-profit, we wanted to make sure our documents passed whatever smell test the IRS might come up with). The website says " Parliamentarians also have knowledge of the nomination and election process, which can be of great assistance in close or difficult elections" and it has a referral directory where you may be able to find someone in your area. Here's a link for more information - www.parlimentarians.org

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

GenoS (Florida)
Posts: 4,276

Posted:

I find some of this confusing, mainly because it's a voluntary association. For instance, Artcle 4, Section 3 ends with, "... provisions of Florida Statute."

What statute would that be? I'm not aware of any statute that governs voluntary HOAs. If you're incorporated not-for-profit then FS 617 would apply.

Bouncing back up to Section 1, it says the board must be composed of members, "who must be, and remain, in good standing during their tenure."

This confirms you're not organized under FS 720 because FS 720 provides the qualifications for board members and individual HOAs don't have the ability to change those qualifications.

So going back to Section 3, it's really confusing when you reference "provisions of Florida Statute".

RichardP13 (California)
Posts: 3,868

Posted:

I would consult an attorney, especially as you are in Florida and from what I have heard attorney don't think anyone is capable of interpreting anything except them.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Some great points ...

Some of the Florida folks have noted in this, and previous posts, the voluntary nature of this particular HOA is governed by FS 617 vic FS 720. I've spoken with a couple of property management folks locally, who say .... "yes, but 720 still regulates some things." After reading both, I tend to think FS 617 is the core statute, but that the intent of 720 (notwithstanding it stating specifically that it applies the mandatory HOAs) bleeds over a bit ... gah ... I'd like to strangle the developers!!

Anyway, given the many factors of this community, not the least of which is the demography of age (and broad apathy - except complaining) I'm trying to provide some basic document that will allow them to easily - should they decide to do so, convert to mandatory - I don't want to unnecessary material in the Bylaws, but do want it to look like governance document for a community, vice a not-for-profit corporation.

Give me a couple of days and I'll take the comments - please keep them coming, by the way - and make some mods ...

KerryL1 (California)
Posts: 14,550

Posted:

Janet raises an interesting point, George. How is the word "members" defined in your documents? Perhaps in the beginning of your CC&Rs, there's sort of a dictionary. Similarly, Members might be defined in your bylaws.

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By KerryL1 on 07/09/2018 1:43 PM
Janet raises an interesting point, George. How is the word "members" defined in your documents? Perhaps in the beginning of your CC&Rs, there's sort of a dictionary. Similarly, Members might be defined in your bylaws.

ARTICLE II
DEFINITION OF MEMBER

Membership in the Association is open to all property owners within the XXX Planned Unit Development. Membership is defined as having paid dues for the year under consideration."

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By GeorgeS21 on 07/08/2018 10:38 AM
Hi All,

Been evaluating options for the Bylaws rewrite I have been tasked to complete. Could you help with a couple of sections?

Remember - voluntary HOA of 189 single family homes in Florida with mandatory covenants.

First relates to Director election - was trying to capture all the possible pitfalls ... trying to keep it simple and short, but don't want to build in anything that will cause messiness in the future.

1. Precursor to the discussion is the Definition of a Member article from the Bylaws ...

"ARTICLE II
DEFINITION OF MEMBER

Membership in the Association is open to all property owners within the XXX Planned Unit Development. Membership is defined as having paid dues for the year under consideration."

2. Election article ...

"ARTICLE IV
BOARD OF DIRECTORS SELECTION AND TERM OF OFFICE

Section 1. Member. The affairs of the Association shall be managed by a Board of Directors, consisting of an odd number of not more than seven (7) Members of the Association, who must be, and remain, in good standing during their tenure.

Section 2. Term of office. The term of office for all Directors shall be for one (1) year, if elected at an annual meeting, and for the remainder of the election year for Directors subsequently appointed by the Board of Directors to fill openings.

Section 3. Removal. Any Director may be removed from the Board, with or without cause, by a majority vote of the Members of the Association at a Special Meeting called for that purpose, or by provisions of Florida Statute.

Section 4. Compensation. No Director shall receive compensation for any service rendered to the Association. However, any Director may be reimbursed for actual expenses incurred in the performance of duties.

ARTICLE V
NOMINATION AND ELECTION OF DIRECTORS

Section 1. Nomination. Nomination for election to the Board of Directors shall be made by the Nominating Committee, or from the floor, at the annual meeting. The Nominating Committee shall consist of a Chairman and at least two others, all of whom must be Members of the Association. The Nominating Committee shall be appointed by the Board of Directors. The Nominating Committee shall present nominations to the membership at the Annual meeting. Nominations from the floor may be made by any Member and need not be seconded.

Section 2. Election. Election to the Board of Directors shall be by secret written ballot. If more than seven (7) Members are nominated, the Members obtaining the largest number of votes shall be elected. If an even number of Members are nominated, the next smallest odd number will be elected to the Board of Directors. There shall be only one vote per property, either in person, by absentee ballot, or written proxy. Votes shall be counted and verified by the Secretary and the President of the Board of Directors."

You are a VOLUNTARY HOA ... YOU cannot Limit Membership via assessments!!! Nor can you limit BOD via assessments!!!

RichardP13 (California)
Posts: 3,868

Posted:

Sorry Janet, but their governing docs state otherwise, or do you suggest that they ignore them altogether?

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By RichardP13 on 07/09/2018 3:16 PM
Sorry Janet, but their governing docs state otherwise, or do you suggest that they ignore them altogether?

I would need to see that section. And whether that section is filed against the Non-Paid member’s Property Titles!!! If the HOA wants to let’s say Amend the CCR’s and only Paying Members are participating with votes and representation ... then how would they plan to file against all owner’s properties who are covered by the HOA???

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Janet - not sure I understand, but you can now see how odd and unmanageable this construct is - again, there are hundreds of these associations in Florida. Voluntary dues payment equals membership in the HOA - and, non payment equals non membership. The properties are still deeded with the CC&Rs. CC&Rs says the Association is voluntary.

If we could change from voluntary to mandatory, it would require 100% vote by all property owners, not just those paying ...

Think about it ... pretty weird and likely to be a nightmare, right?

Icky just thinking about it!

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By GeorgeS21 on 07/09/2018 8:40 PM
Janet - not sure I understand, but you can now see how odd and unmanageable this construct is - again, there are hundreds of these associations in Florida. Voluntary dues payment equals membership in the HOA - and, non payment equals non membership. The properties are still deeded with the CC&Rs. CC&Rs says the Association is voluntary.

If we could change from voluntary to mandatory, it would require 100% vote by all property owners, not just those paying ...

Think about it ... pretty weird and likely to be a nightmare, right?

Icky just thinking about it!

You either need to better educate yourself or you need to hire an attorney ... because it appears to me you are digging yourself a huge liability hole.

https://www.linkedin.com/pulse/do-voluntary-hoas-have-follow-floridas-new-hoa-isaac-benmergui

“Voluntary HOAs fall outside this new law. The new law defines an HOA as an organization that requires a mandatory membership. Voluntary HOAs fall under different laws. Chapter 617 of the Florida statutes covers voluntary HOAs, which are neighborhood organizations that don’t require residents to join, but all residents are entitled to join. This means that they can’t only include certain homeowners and exclude others.”

As I keep stating ... you cannot exclude any owners.

Because your HOA has quite a bit of common area property the “potential” way around the 100% agreement would be to petition a court to make the HOA mandatory ... if that is allowed in FL and which you would need to ask an attorney, as we are not attorneys.

GenoS (Florida)
Posts: 4,276

Posted:

That linkedin article is pretty worthless and I would be very hesitant to reference it for any purpose whatsoever. It was written in 2014 and refers to FS 720 as a "new law". Nothing could be further from the truth. FS 720 was around for more than a decade before that article was written. The article mischaracterizes some of the changes made to FS 720 in 2014 as well.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By GenoS on 07/11/2018 10:43 AM
That linkedin article is pretty worthless and I would be very hesitant to reference it for any purpose whatsoever. It was written in 2014 and refers to FS 720 as a "new law". Nothing could be further from the truth. FS 720 was around for more than a decade before that article was written. The article mischaracterizes some of the changes made to FS 720 in 2014 as well.

It was posted by a Miami Real Estate Attorney, but I guess he would not know what he was talking about. Potentially when he noted “new law” could have actually meant updated changes. There have been changes in 2014 and other later years ...

He does state that Voluntary HOA’s do not fall under FS 720. My main point is George potentially needs to seek an attorney’s advice.

GenoS (Florida)
Posts: 4,276

Posted:

I completely agree that a voluntary HOA should not be looking to FS 720 for anything. It simply does not apply to non-mandatory HOAs.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

George

I repeat:

Many associations have done away with Nominating Committees and allow for any owner in good standing to be nominated by another owner in good standing and this would be at anytime prior to or at the Annual Meeting.

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By JohnC46 on 07/11/2018 6:19 PM

Many associations have done away with Nominating Committees and allow for any owner in good standing to be nominated by another owner in good standing and this would be at anytime prior to or at the Annual Meeting.

Yes, and just as much as FS 720 might not apply to you, that doesn't mean you can't mimic some of its provisions in your own governing documents. For instance, FS 718, the condo statute, does not apply to my HOA but we are preparing to "steal" some of the language in FS 718 for updated election procedures. The FL legislature some years back made the use of nominating committees unlawful. They didn't do the same for HOAs, however, and our Bylaws specify how our "nominating committee" should operate. By amending our Bylaws we will eliminate the use of a nominating committee and adopt election procedures in line with what's used by FL condo associations.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By GenoS on 07/11/2018 11:54 AM
I completely agree that a voluntary HOA should not be looking to FS 720 for anything. It simply does not apply to non-mandatory HOAs.

It appears George potentially falls only under FS 617 of the Florida Statutes as a Voluntary HOA.

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0600-0699/0617/0617.html

GenoS (Florida)
Posts: 4,276

Posted:

Every Florida Not For Profit corporation falls under FS 617. In the late 1990s FS 617 was amended to include new paragraphs meant to address HOAs. Around 2000 that new language, and more, was split off from FS 617 into the newly enacted FS 720. If FS 720 is silent on any particular thing, FS 617 has always been and still is the fallback.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By GenoS on 07/12/2018 12:52 PM
Every Florida Not For Profit corporation falls under FS 617. In the late 1990s FS 617 was amended to include new paragraphs meant to address HOAs. Around 2000 that new language, and more, was split off from FS 617 into the newly enacted FS 720. If FS 720 is silent on any particular thing, FS 617 has always been and still is the fallback.

Yes I know that ... and you and I already agree that Voluntary HOA’s do not fall under FS 720, as you noted in an above statement for anything.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

OK - so, I agree, and have explained to the Board that we are covered by FS 617 ... I understand.

However, as Geno pointed out better than I was able, I did want to mimic some of the language used wrt FS 720. Frankly, using FS 720 as a guide for our own governance document seems reasonable ... while obviously understanding we are voluntary, hence not governed by 720.

What I don't understand is why a voluntary organization in this context can't exclude those that are not paying per both the bylaws of that not for profit?

KerryL1 (California)
Posts: 14,550

Posted:

I don't understand the answer t your last question either, George.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By GeorgeS21 on 07/14/2018 4:49 PM

What I don't understand is why a voluntary organization in this context can't exclude those that are not paying per both the bylaws of that not for profit?

Because your governing documents must be filed with your County Records. When you file them with your Country Records those documents are then attached to ALL owner’s Property Titles. If you wanted to attach a document to my property title without my VOTE or in essence being allowed some form of agreement ... it would be “Katie Bar The Door”. I could potentially SUE the living tar out of you for encumbering my Property Title with a document you potentially had no right to file and essentially “clouding” by Property Title.

In order to file any documents regarding your HOA you MUST have the correct percentage of ALL Owners agree whether they are paying or not paying for your Volunteer HOA.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Hmmm ... all properties are deeded and have mandatory covenants via the CC&Rs ... has always been that way.

The HOA is voluntary in the sense that it does not require anyone to become a member - to pay dues. Membership is voluntary and is associated with the payment of dues.

I guess I still don't understand ....

JenniferG11 (Texas)
Posts: 667

Posted:

"Section 1. Nomination. Nomination for election to the Board of Directors shall be made by the Nominating Committee, or from the floor, at the annual meeting. The Nominating Committee shall consist of a Chairman and at least two others, all of whom must be Members of the Association. The Nominating Committee shall be appointed by the Board of Directors. The Nominating Committee shall present nominations to the membership at the Annual meeting. Nominations from the floor may be made by any Member and need not be seconded."

I don't understand this part. If anyone can be nominated from the floor at the election, why bother with the nominating committee at all?

Have people turn in their names as candidates by 'X' time before the election, allowing for any homeowner in good standing to do so, and let all the members know who their choices are, so they are able to vote absentee or by proxy in advance of the election.

* We had a bad moment with our docs worded similarly to yours where there is no requirement to be in good standing until they are in office. We had a candidate not in good standing at the time of the deadline, but his name went out to all the owners and was on the proxies and so forth. Some supporters of his argued it doesn't matter until he is or is not elected. I disagreed, because why have to have a second election?

I stand by that as being practical, but it's true the docs don't require it. If we amend ours, I hope they change that to avoid confusion. If people want to run, they should have their house in order before being accepted as a candidate, imo.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Several other HOAs and this one have used the nominating committee to recruit board candidates ...in this current community, if we didn’t push for nominees, there might not be any.

Apathy.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By GeorgeS21 on 07/15/2018 7:04 AM
Several other HOAs and this one have used the nominating committee to recruit board candidates ...in this current community, if we didn’t push for nominees, there might not be any.

Apathy.

Quite the opposite happens. If one knows all they need is another owner to nominate them they will often say OK versus needing to have a committee scrutinize them. The easier it is to run for office, the more that will run for office.

JenniferG11 (Texas)
Posts: 667

Posted:

Quote:

1) You can push for people to run w/o the complication of the committee. Why even have nominations? Why can't anyone just put their own name up?

2) You are making voting too hard. People have to show up to the actual election to vote. You say they can do absentee or proxy, but how, when they don't know who is on the ballot?

KerryL1 (California)
Posts: 14,550

Posted:

Yes, Jennifer, I asked that question waaaay above too.

We place a Call for Candidates on our website and in our newsletter. Candidates nominate themselves. Once we revise our bylaws and get ride of the Nominating Committee, we'll just continue having our PM vet the candidates to make sure they qualify.

Because most owners vote by mail, no one has made a nomination from the floor in many years.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Obviously would have to notify in advance to vote that way 😀

If we waited for nominations from the floor, no one would nominate anyone - unless we organized it that way. And then there is the problem with organizing it that way when the folks forget to go to the meeting. Or, they die.

I’m not trying to funny, just relating some of the things that have happened.

The nominating committee process allows an opportunity to recruit good folks ...

JenniferG11 (Texas)
Posts: 667

Posted:

Quote:

Posted By GeorgeS21 on 07/15/2018 4:06 PM
Obviously would have to notify in advance to vote that way 😀

If we waited for nominations from the floor, no one would nominate anyone - unless we organized it that way. And then there is the problem with organizing it that way when the folks forget to go to the meeting. Or, they die.

I’m not trying to funny, just relating some of the things that have happened.

The nominating committee process allows an opportunity to recruit good folks ...

HOW will you notifying advance when the wording says the candidates will be announced at the election?

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Good point - perhaps the original intent was to do both? Announce early for voting and then at the meeting if there were additional from the floor? I’ll need to clean up language - or drop everything related to voting by mail.

Janet - forgot - all CCRs are recorded.

KerryL1 (California)
Posts: 14,550

Posted:

I promise, you, George, that voting by mail increases turnout and thus making quorum is never a problem in my HOA. WE have close to 30% absentee owners an another 10% who live here only part time, so voting by mail works out great!

The thing is, does FL or your bylaws permit it?

We also w ill get rid of nominations from the floor form our bylaws when we req write them as it h just doesn't happen.

I still don't understand what Janet is saying about all Owners being "Members" of you HOA?

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Someone was prescient about the community apathy problem ... the language from the Bylaws is:

"Section 4. Quorum. A quorum is said to have been reached by the Members present and entitled to vote, or of proxies entitled to vote, at any properly convened meeting announced in accordance with Section 3, above. No business may be conducted, except for a call of adjournment, if a meeting has not been called in accordance with Section 3, above."

Quorum Schmorum ...

At least it looks like the intent was to describe and specify a quorum as being whoever shows up for a legally called meeting.

Florida Statute Chapter 617 says:
"617.0725 Quorum.—An amendment to the articles of incorporation or the bylaws which adds, changes, or deletes a greater or lesser quorum or voting requirement must meet the same quorum or voting requirement and be adopted by the same vote and voting groups required to take action under the quorum and voting requirements then in effect or proposed to be adopted, whichever is greater.
History.—s. 37, ch. 90-179; s. 23, ch. 2009-205."

Kinda weird language, but our Bylaws says as I quoted, above ...

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By GeorgeS21 on 07/14/2018 9:20 PM
Hmmm ... all properties are deeded and have mandatory covenants via the CC&Rs ... has always been that way. YEP ... and if your Membership is those who pay dues then who will vote to make changes to this document??? It cannot just be the members paying dues and representatives of the “dues paying member” BOD proposing such changes which have only been elected via members paying dues. WHY ... because those documents are also attached to Non-Paying members who have the same rights to vote and to vote for BOD representation regarding overseeing the HOA.

The HOA is voluntary in the sense that it does not require anyone to become a member - to pay dues. Membership is voluntary and is associated with the payment of dues. These two sentences you stated here contradict themselves. The first you note “does not require anyone to become a member and pay dues”. The second you state “Membership is associated with the payment of dues”. THAT is the issue and which you are not understanding ... some of the reasons which I noted above.

I guess I still don't understand ....

GeorgeS21 (Florida)
Posts: 3,808

Posted:

I dunno, it still seems clear to me, but perhaps I’m too close to the issue.

Membership if you pay dues ... of the HOA.

Mandatory CCR coverage via deed.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By GeorgeS21 on 07/16/2018 7:51 AM
I dunno, it still seems clear to me, but perhaps I’m too close to the issue.

Membership if you pay dues ... of the HOA.

Mandatory CCR coverage via deed.

Which is why I have stated you need to consult with attorneys on this issue.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

The current Bylaws can be modified and approved by the Board - this was part of the original Bylaws - given the circumstances, this is probably what I will recommend to the Board (vice membership approving) - and I will write in that another Board can modify. I don't think that is likely to happen unless they get another activist like me, though. Will record immediately to give basis for review in the future.

All Members of the Board are required to be members of the HOA.

No money for an attorney since the HOA is voluntary - and, btw, do you think anything is going to be reasonable given the hundreds if not thousands of voluntary associations like this across Florida? To my knowledge they are stumbling along with good people supporting the needs of the community, and others living off the good people.

Covenants are enforceable per recorded CC&Rs.

See the quandary? Not discussed, but think about the acre of so of common property that can't be sold because it is indivisibly owned by the 189 property owners ...

Pretty awful.

I'm going to continue to work the Bylaws until they make sense, are easy to follow and abide by the law of FS 617, with as much mimicry from FS 720 as possible.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By GeorgeS21 on 07/17/2018 8:14 AM
The current Bylaws can be modified and approved by the Board - this was part of the original Bylaws - given the circumstances, this is probably what I will recommend to the Board (vice membership approving) - and I will write in that another Board can modify. I don't think that is likely to happen unless they get another activist like me, though. Will record immediately to give basis for review in the future.

All Members of the Board are required to be members of the HOA.

No money for an attorney since the HOA is voluntary - and, btw, do you think anything is going to be reasonable given the hundreds if not thousands of voluntary associations like this across Florida? To my knowledge they are stumbling along with good people supporting the needs of the community, and others living off the good people.

Covenants are enforceable per recorded CC&Rs.

See the quandary? Not discussed, but think about the acre of so of common property that can't be sold because it is indivisibly owned by the 189 property owners ...

Pretty awful.

I'm going to continue to work the Bylaws until they make sense, are easy to follow and abide by the law of FS 617, with as much mimicry from FS 720 as possible.

First as I noted above in bold ... when you file that document will it be attached to homeowner’s Property Titles in your State??? If the answer is YES then you potentially need a majority of owner’s to agree with everyone having an “opportunity” to vote. In my state and others a document filed without that vote opportunity could be considered a “fraudulent” filed document against the Property Titles. If it will just be filed for the Voluntary HOA and not against the property titles ... then potentially OK.

YEP ... see your quandary with the acre or so of common property and why as stated in past your developer should have potentially been (tarred and feathered) for setting up that way with such common property ... LOL. It is also why stated you should potentially consult with an attorney to see if can petition a court to have the HOA mandatory. In some states the courts more and more are finding if there is “Common Area Property” the HOA should be mandatory and some are changing their State Laws to reflect this issue and take care of the problem. Therefore, solicit your legislators with the issue and maybe they will fix via a new statute.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Janet,

The CCRs already connect the properties in the community - and they are recorded. The deed and intent for the one acre park are also recorded.

My understanding of the By-Laws is they relate to only how the HOA interacts with the members - not the property owners, unless those property owners are paying members.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Finally got some feedback from one of my co board directors.

She is asking for a modification to the Board of Directors quorum requirement - change from a majority to a majority WITH at least two officers.

I think the answer is that it is a Board of DIRECTORS and that the officers are only officers because of the specific tasks they are tasked to accomplish and that all votes are equivalent.

Has anyone heard of this sort of construct?

GenoS (Florida)
Posts: 4,276

Posted:

I have not. I'd be against that. What if the directors who are not officers wanted to replace the officers? The officers could theoretically thwart the will of the majority non-officer directors by just refusing to show up at a meeting.

KerryL1 (California)
Posts: 14,550

Posted:

Entirely agree with Geno. In addition, some bylaws like ours allow non-directors to hold offices except for prez & VP. We had one once when no director wanted to be treasurer. These officers shouldn't vote on board matters.

Homeowners (excpet to fill board vacancies) vote for directors so all directors should represent them equally.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By GeorgeS21 on 07/18/2018 11:14 AM
Janet,

The CCRs already connect the properties in the community - and they are recorded. The deed and intent for the one acre park are also recorded.

My understanding of the By-Laws is they relate to only how the HOA interacts with the members - not the property owners, unless those property owners are paying members.

Let me see if can get you to understand better where I am coming from. Most states require a Non-Profit Corporation HOA in place for any HOA PRIOR to a Developer selling any lots and/or condos to consumers. To do that requires:

1. Article of Incorporation to implement the Non-Profit HOA
2. Bylaws to govern how the HOA will be ran and managed
3. Declaration of Covenants, Conditions & Requirements (CCR’s) essentially noting how the HOA is to be built with regulations.

I have read a lot of different documents for HOA’s and I would be willing to bet that your CCR’s (which you stated above is attached to everyone’s property titles and recorded with the County Records) will have a very high probability of referencing both the Article of Incorporation and the Bylaws ... because the Bylaws are just “one part” of the entire Non-Profit HOA Corporation. If you believe they are separate entities ... I would contend you are sadly mistaken.

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By JanetB2 on 07/24/2018 10:27 PM

They actually are separate entities that have a hierarchy of importance. Most of them, are boilerplate, meaning you could find them in many other places within the same area. For example one home builder in Southern California had the same set in 7 different HOA's within a 50 mile radius, just under different names.

Who says HOA's are not all alike?

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By RichardP13 on 07/24/2018 10:43 PM

Posted By JanetB2 on 07/24/2018 10:27 PM

They are NOT separate “entities” ... It is ONE “entity” with THREE separate sets of Documents attached to that ONE HOA Non-Profit Corporation entity.

🎯 You've read this entire discussion

Join the conversation with 50,000 HOA & Condo Leaders:

✓ Ask follow-up questions
✓ Share your experience
✓ Get expert advice
✓ Access 350,000 discussions

Create Free Account →

⚡ Takes 30 seconds

Already a member? Log in here