Bylaws Typo

I am at a loss of what to do and looking for suggestions. Last year we had a board member state that they would like to increase the board size from 5 to 7. I've included several excerpts from our bylaws to explain the problem which is why this is so long, but essentially I believe a section was removed, throwing off the numbering. And now there's disagreement as to what the maximum board size is. I believe it's clearly 5, but I'm not sure how to end this argument. At our last meeting she tried to motion to increase the board size but whenever I advise it's in conflict with our bylaws she just insists it isn't.

4.02. Number and Qualifications. The number of directors which shall constitute the entire Board of Directors shall not be less than three (3), nor more than five (5). The initial Board of Directors shall consist of three (3) directors. The directors need not be Members, nor residents of the State of Texas nor residents or citizens of the United States.

4.04. Change in Number. The number of directors may be increased or decreased from time to time within the limits specified in Section 5.02 by resolution of the Board of Directors or by the Members at the annual meeting, but no decrease shall have the effect of shortening the term of any incumbent director.

4.06. Removal. At any special meeting of the Members, duly called as provided in these Bylaws, any director may, by the affirmative vote of the holders of two-thirds (2/3) of each voting class of Members; be removed from office, either with or without cause. At such meeting a successor or successors may be elected by a plurality of the votes cast, or if any such vacancy is not so filled, it may be filled by the directors as provided in Section 5.07.

4.07. Vacancies and Additional Directorships. If any vacancy shall occur among the directors by reason of death, resignation, removal or otherwise, the directors then in office shall continue to act and may fill any such vacancies by a majority vote of the directors then in office, though less than a quorum, or by a sole remaining director. If a vacancy arises as the result of an increase in the number of directorships, the vacancy shall be filled by election at an annual meeting or at a special meeting of Members called for that purpose. A director elected to fill a vacancy shall be elected for the unexpired term of his predecessor in office.

5.02. Special Meetings. Special meetings of the Board of Directors may be called by or at the request of the President or any director. Notice of the call of such special meeting shall be in writing and delivered for transmission to each of the directors not later than during the third (3rd) day immediately preceding the date for the meeting.

5.07. Deadlock of Directors. The Chairman of the Board of Directors, or if there is no Chairman of the Board, the President, shall be given an additional vote with which to break the deadlock of the directors solely on the matters on which the deadlock has occurred.

4.02 is the section in question, 4.04 is the section she says allows the board or members to increase the board size to any number, because even though it references 5.02, 5.02 doesn't actually specify any limits (it should read 4.02). I included 4.06 because it's the same thing, it references 5.07 which is irrelevant, but clearly should reference 4.07. I included 5.02 and 5.07 to show that they're irrelevant.

In our CCRs there's something along the lines of stating if there's a disagreement of the CCRs the interpretation that's most clearly in line with the intent stands but there's no such language in the bylaws. I have tried finding something that would indicate the same to no avail. Our HOA is located in Texas. Our bylaws advise that an amendment requires majority of vote of each class (impossible, even if everyone agreed one way or the other we don't have a lot of participation.)

It's important to note that we only had 8 nominees this year, there isn't an abundance of volunteers. In my opinion, for her this is about ensuring she has a spot on the board, not that there's a need for more members. Is there some sort of guidance that would help end this argument?

Thank you! Is there any sort of guidance I could look to that would talk about the importance of intent? I've included that in my argument and it's just dismissed as if judges only consider verbatim what is written, which I disagree with, though I claim no expertise in this area whatsoever.

I'm actually the President of the BOD. Two amazing board members have quit over the animosity within the board created by this argument. I would prefer not to have to spend Association funds to counter an argument made by an extremely small group of homeowners. For example, at our last meeting I advised that it was against our bylaws, but asked how many homeowners agreed that it was within the bylaws and that it would improve the management of the Association to increase the board size to 7 and 9 out of about 40 present agreed. 2 of those 9 would be added to the board if it was increased, and I believe the others would change their minds if they understood the reasoning behind the request. Our HOA has 175 homes.

Can you clarify what you mean by enforcement provision? Was this only applicable if I was trying to force the board to engage the attorney?

I agree with the others. Your BOD must be 3 to 5 Directors with the BOD or the Membership voting to the actual number 3-4-5. The Bylaws could be changed to allow a different size BOD (say 5 to 9) but the owners would have to vote for that.

You are letting one person bully you. Make a ruling and say if they disagree, they are free to seek legal counsel. Throw the ball back to them.

Kerry - thank you for the suggestion, I hadn't thought of just refusing to discuss it without evidence to the contrary (as dumb as that sounds as I type it).

Section 7.1. Enforcement. The Association, as a common expense to be paid out of the Maintenance Fund, or any Owner at his own expense, shall have the right to enforce, by proceedings at law or in equity, all restrictions, covenants, conditions, reservations, liens, charges, assessments, and all other provisions set out in this Declaration. Failure of the Association or of any Owner to take any action upon any breach or default of or in respect to any of the foregoing shall not be deemed a waiver of their right to take enforcement action upon any subsequent breach or default.

Thank you Augustin for the suggestion of looking into statutory interpretation, knowing the language I should be looking for should be a great help.

We are down to three directors, and the person who tried to increase the board size to effectively automatically add her wife and next door neighbor is now stating that her and her wife should be added. Fortunately, our bylaws allow the remaining directors to fill the positions, but I know she's going to lose it when that happens (or doesn't). I am one of the directors, and it's important to note that my husband is a director as well. Sounds odd, but the short version is that I've been on the board for 5 years, and my husband joined last year when there were no other nominees. He works in HOA management which is why I believe homeowners supported us both serving. I was voted in at the annual meeting, along with my husband and her next door neighbor, and the two that quit last weekend. The first time the director brought it up 2 were in favor, 3 opposed. When it was brought up the second time 1 was in favor, 4 were opposed. After the vote and with the board as it stands it is 1 in favor, 2 opposed. If we add two more it's likely to add at least one in favor, possibly 2 giving them the majority, but I still think it's against our bylaws...

As is common on here after a few posts the "dirt" comes out. The 3 person BOD consists of the OP, her husband, and one other. So one might ask, are our HOA decisions a matter of "pillow talk"?

I understand people questioning to situation and/or suggesting alternatives.

Stephanie
You and the other 2 members should come to some kind of consensus on like- minded people, and appoint 2 more people to fill that board to its maximum number.

Then put that idea of increasing the board in deep freeze.

Deal with it only if the Members want to increase the board number. They will have to jump over hurdles to change it.

-- Stephanie, thank you for answering my questions.

-- You say non-members may serve as directors, so I do not think spouses serving together on this board is unlawful. Many might not support this. On the other hand, when apathy is the rule, a HOA is lucky to have a well-qualified married couple serving.

-- If two of the three current directors want to appoint two more directors to bring the total to five, then do so.

-- Next, if three of the five directors want discussion of the board increasing the number of directors to six or more to happen at a board meeting, then I would put it on the agenda.

-- Else I would do as Kerry says but consider also an explanation to the board. Maybe have an open forum after a board meeting and let the members talk. For the open forum, you should have prepared a handout explaining your reasoning, starting with what was in your first post and maybe a bit on statutory interpretation and whatever you want to say is in the case law. Be strong.

Stephanie,

How old are these bylaws?

Really, they read like they were taken fron the developer’s bylaws and just rolled into the new HOA’s bylaws. Very oddly worded.

Yup - you need an overhaul of these bylaws - which now sound like developer’s turnover bylaws giving the new board the right to set its number at the beginning of the turnover.

As president you can monitor any motion brought before the board. The entire board can object to the consideration of a motion if it is improper, illegal, conflicts with current bylaws or is without merit.

So anyone who puts forth this motion needs to qualify the need. The proof is on them.

If your bylaws permit proxies to act as part of a meeting quorum, you can call for a vote at any soecial meeting. But you are far from that point right now.