Board member did not like the approved bylaws

I am on a small HOA in New Mexico. One of the baord members has decided they do not like the way our bylaws have voting, as the general membership elects the officers not the board. New Mexico states that the officers are elected by the board unless there are other provisions.

She says this can't be true because you can't legally change your bylaws to something different than New Mexico Statue.

What recourse do we have?

New Mexico Statute 47-7E-8 (G)states: "Not later than the termination of a period of declarant control, the lot owners shall elect a board of at least three members, at least a majority of whom shall be lot owners. The board shall elect the officers. The board members and officers shall take office upon election." New Mexico Statute 47-7E-8 is also known as "Section 8" of the statute.

New Mexico Statute 47-7E-1(C) states:
"Except as provided in Sections 4 and 8 of the Homeowner Association Act, that act does not
invalidate existing provisions of the article of incorporation, declaration, bylaws or rules of a homeowner association created before July 1, 2013."

It does not matter what a New Mexico HOA's governing documents, amended or otherwise, say with regard to who elects the HOA's officers. The statute trumps all. Namely, "The board shall elect the officers." If your New Mexico HOA is not doing this, then it is violating the statute.

For the full statute, see https://www.nmclerks.org/content/files/Homeowner%20Association%20Act.pdf

You are absolutely correct the New Mexico Statute does say that. But we changed our bylaws because the homeowners wanted to be voted for a position and not leave it up to the board.

The statute says officers will be voted on by the board if there are no other proivisions.

Our bylaws now read:
B. Election of Officers:
1. The election of officers shall take place at the annual meeting of the Association Members.
2. The election of President, Vice President, Secretary, Treasurer, and Members at Large shall be
elected to a two year term, alternating years as follows: President, Treasurer and one (1)
Member at Large shall be elected in odd number years and Vice President, Secretary and
two (2) Members at Large in even number years.

Nope. But I can appreciate your being led to water and not drinking it.

NO, it does not.

IF, repeat IF, your association was created BEFORE July, 2013 THEN your bylaws may state different than the statute, BUT, only if they so stated THEN.

Our association was created in 2005.

Your snarky remark is nothing compared to what I have had to put with since December. I have had to send a letter of cease and desist to this person due to harrassment and slander.

I appreciate the information. It really helps.

A little more information. We are still unclear on what a provision means then. I know this is going round and round, but I have to be absolutely clear on this to the people I am dealing with. One is very agressive and will not back down whether she is right or wrong.

The Corporations and Business Services (Secretary of State Office) has us listed as a Domestic Non Profit Corporation subject to Statute Law Code 53-8-1 to 53-8-99

53-8-23 A states:
... In the absence of any provision, all officers shall be elected or appointed annually by the board of directors.

Does that not mean that if we don't provide for the election of offices in our bylaws then we do it this way. The By-Laws are our provision and therefore if they provide for the election of officers, then we do it the way the By-Laws say.

Rebecca, afaic you raise a good point regarding what the NM Nonprofit Corporation Act says compared to the NM HOA Act. My understanding is that a HOA statute or Condo statute can trump what a state's corporate statutes say. This is due to the HOA statute or Condo statute dealing with particulars of a special type of corporation. It's like the HOA statute is a sub-category of the corporation statute. The exact phrase I have seen used by HOA attorneys is that the corporate statutes are "not apposite" (meaning 'not appropriate') when the HOA statute says something not quite the same as what the corporate statute says on a certain issue.

Also, I understand that one general rule is that, when there is a conflict between statutes, the most recent statute trumps the older statute. This too would mean that the HOA statute trumps the Nonprofit Corporation statute.

Lastly, I do not see a definition of "any provision" in the Act. Reference is made to "provision" at 53-8-2 and 53-8-3 (and no doubt other sections), indicating it could refer to "provisions" of statutes or of, say, Bylaws.

I think a court would interpret the HOA Act's provision, regarding the HOA board electing the HOA officers, to be a de facto provision of a NM HOA's Bylaws.

Can your HOA afford to have a NM HOA attorney weigh in?

No we cannot afford an attorney. Unfortuantely, we did not know about this change until we were blindsided by this person. She is fullfiling a personal agenda and is power hungry.

I sit on other boards that vote the same way.

This is from an association located just outside of Albuquerque, New Mexico , amended November 2013

Section 4.2 Election of Officers. The election of Officers-elect shall be conducted at the
December meeting by a majority vote of a quorum of the Board. The Officers-elect shall take
office immediately following the end of the February Annual meeting. Each person elected as an
Officer shall continue in office through the next Annual Meeting after taking office. Vacancies
of officers shall be filled by a majority vote of a quorum of the Board subject to other conditions
of these Bylaws regarding length of service on this Board. Any new officer shall complete the
term of the replaced officer.

Seven is a lot for a small HOA!

Anyway, how can you "stick with" members (homeowners) voting for officers, when your bylaws do not state that Owners may vote for officers? Or by "members,' do you mean board members, Rebecca?

Seven is a lot for a small HOA!

Anyway, how can you "stick with" members (homeowners) voting for officers, when your bylaws do not state that Owners may vote for officers? Or by "members,' do you mean board members, Rebecca?

Rebecca, do your Bylaws require officers to also be directors?

Are directors elected at the annual meeting as well?

You indicate you have this one director who has challenged the change to the Bylaws. She claims the change is unlawful. You indicate she has been difficult and you have sent her a cease and desist letter. I am not sure my words here help, or that you want to read them. But if I were in your shoes, I think I would try to set aside my ego and fears; bite the bullet; admit this one director was correct about what the law says; and ask the Board to comply with the HOA statute. Compliance could simply translate to the Board formally announcing that, pursuant to the NM HOA statute section 47-7E-8, the Board has elected so-and-so as the officers, who happen to be the same that the members voted for (technically, unlawfully) at the most recent annual meeting. I would quote from the HOA statute and also explain my understanding is that it trumped the corporate statute section.

You say this director is power hungry. Does she have a board majority ready to vote her in as president? If she becomes President, it is possible you could keep her in line with other statutes and applicable parts of the Bylaws. Somehow get it across that the board, and not any one director (not even the president acting by herself or himself), makes HOA decisions.

I grant that this sounds like a hard situation. Your HOA may have to go through an election cycle or two to get rid of any incompetent board members. Keep reading here, and you will find that difficult directors are pretty common.

If you want a bit of reassurance on the statutes, email a few HOA attorneys in your area with the section from the HOA statute and the section from the corporate statute. Ask how the seeming conflict is resolved. Some may be able to give you a quick answer to this. Also try the free legal clinics in your area. Go to the district courthouse and ask when these are.

Meanwhile, I think your HOA is vulnerable to a successful legal action against it. Not that anyone is going to pony up the money and time to file in court. But they could. If you have insurance, be prepared to put the insurer on notice. It's possible you might even be able to get some free legal help from the insurer.

They are elected at the yearly loa meeting.

The offices are voted on by the members at the annual meeting.

So in thinking about how to handle this. I think we should have ratified the vote that was made at the general membership meeting on the officers and document it then look at bringing our bylaws into compliance with NM Statute,

That way we don't violate the way the bylaws are written but also conform to the law.

They bylaws say we elect officers at the association meeting. So actually we are not in violation except for the fact that we have a ballot that lists who is running for what office. We are a very small association. Our bylaws used to say we elected officers at the first annual meeting of the board.

"1. The election of officers shall take place at the annual meeting of the Association Members"

While not common, it is not unheard of for members to vote Officers in. I know one social association where you run directly for President and others run to be on the BOD. Those that run directly for President and lose are not put on the BOD.

The ballot reads like vote for A or B or C or D for President.

Vote three of the following to be on the BOD: E or F or G or H.

In New Mexico it states that the board members vote in their officers. If the board members all voted at the general meeting along with all of the (few) association members would that be considered legal?

Just trying to justify our bylaws as written. But we do need to clarify them better.

But, are we correct in assuming to follow the way our bylaws were written, that we voted for them at the annual meeting. The person that has taken over has disregarded them and said that they will be voted in at the first annual board meeting of the year. That is the way they were written before 2014. Can you legally change the way elections work to a set of bylaws that were voted on years ago and changed recently?

I think I went to see Rebecca answer Augustine's question: Must officers be directors?? Your bylaws should answer this question, Rebecca.

I just noticed this: Rebecca wrote: "...we have a ballot that lists who is running for what office." I assume this ballot is based on the understanding of "B" of their bylaws.

But how are directors elected?? On this same ballot with the names on it?

There are three parts of your Bylaws that you have to read carefully to put EVERYTHING into proper context. One, is the Annual Meeting itself. Two, is the election of directors, and the third is the election of officers. Based on what you posted, there is nothing that says the members choose the officers, what it says is they are elected at the annual meeting.

As I mentioned before, officers are elected or appointed at the annual meeting, during a portion set aside that is called an "organizational meeting".

The reorganization of officers is done annually at the annual meeting. It can be done as many times during the year as your heart desires. If this is what your understanding of the Bylaws, then the document is deeply flawed and possibly written by an amateur. For instance, what if the president and treasurer resign. Who appoints, the members or the board? What if the two the board may appoints aren't qualified?

The other issues to think about, because it is possible.

1. Directors may not have to be members or owners.
2. Officers may not have to be Directors.

Remember, the president, vice-president, secretary, treasurer or at large person doesn't cast a vote, the persons director does.

For instance, I manage a small association of 21 homes. There are three directors and 5 officers. You are not required to be a owner/member to be a director and except for president, none of the officers need be directors.

My suggestion, get someone qualified to read your Bylaws thoroughly. No one here, without see everything can give you sound advice, we're only guessing.

I believe the above is Rebecca's problem. Either she has not fully read them or she is not capable of understanding them.

NEVER said it had to be written by an HOA attorney. Unfortunately, when done by such professionals, the problems arise. Just don't have them done by amateurs.

END OF CASE

... complex, not complicated ...