HOA ByLaws

Started by GregoryA2 • 10 replies • 691 views

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GregoryA2 (Ohio)
Posts: 6

Posted:

Hello,

First time posting...

I have a question concerning the ByLaws of the HOA I am part of.

I live in a newer community where the developer just finished up in. The developer had two of three seats on the HOA board, and relinquished those seats when finishing up. Those two seats went to two members of my HOA that volunteered to fill those seats. The issue my HOA is having is the changing of the bylaws and the members of the HOA being involved. Our bylaws state:

10.3 AMENDMENT. Except as otherwise provided in this Declaration, the covenants and restrictions of this Declaration shall run with and bind the land for a term of twenty (20) years from the date of this Declaration is recorded, after which time they shall be automatically extended for successive periods of ten (10) years. This Declaration may be amended during the first twenty (20) year period by an instrument signed by no less then seventy-five percent (75%) of the Low Owners, and thereafter by an instrument signed by not less then fifty-one percent (51%) of the Lot Owners.

So with that said... the residents that are part of the HOA really aren't involved. There are approximately 170 homes in my community, and only about 20% of the Lot Owners (homeowners) show up to HOA meetings. Therefore, we are unable to get anything changed that the developer set up because the bylaws are preventing us from doing so because we can't get 75% participation.

Has anyone had any experience in changing bylaws set up like this with little participation? Does anyone have anything to help at all?

Thanks in advance!

MelissaP1 (Alabama)
Posts: 13,836

Posted:

It depends on how you can get the votes. Can you go door to door or requires a special meetings? Ours required a special meeting to cast a vote for the changes. So we had to get a document to give up your rights to cast a vote at the meeting. That way we could go door to door to approve our changes.

It is best NOT to just do By-laws. You should do all 3 documents at the same time. CC&R's and Articles of Incorporation documents need to be officially filed. Which isn't free. CC&R's are at the county level ad the Articles are at the State. By-laws are internal to the HOA. They are not required to be filed but often are with the CC&R's. The CC&R's and Articles are consider PUBLIC documents. By-laws are not.

How to make changes are in the documents. It's good to remove all references to the developer and their voting system out of the documents. Plus get a lawyer familiar with corporate law. This isn't a Real Estate endeavor.

Former HOA President

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Looks like the excerpted material is not from Bylaws, but rather the CCRs.

Pretty common language ... and the requirement for a large percentage is appropriate, and common.

KerryL1 (California)
Posts: 14,550

Posted:

As George points out, the language is from your declaration (aka, CC&Rs), not your bylaws. CC&Rs often have such a high % of owners required.

But what methods do you have available to vote in your HOA and in Ohio? Must owners show up in person? Are proxies permitted? Can Owners vote by mail & absentee as in CA? These things should be in your bylaws. I think OH has HOA statutes too. I think Cathy's from Ohio and can help a lot.

Are you on the Board, Gregory? How many homes are there?

Can you cite one or two CC&Rs that you want changed?

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By GregoryA2 on 05/21/2020 3:35 PM
Has anyone had any experience in changing bylaws set up like this with little participation? Does anyone have anything to help at all?

The CC&Rs and Bylaws are two different documents. Quote here what your Bylaws say about amending.

BenA2 (Texas)
Posts: 1,273

Posted:

As others have mentioned, it sounds like you are referring to the Covenants, Conditions, and Restrictions (CC&Rs) which are like the "Constitution" of the Association. The bylaws are a separate document that usually cover how the association is operated and managed.

Like the Constitution, it is not supposed to be easy to change the CC&Rs. They affect property rights that you agree to when you purchase your property. It wouldn't be fair if a mere majority of voters could change those rights. In fact, some state laws require a supermajority (2/3 or 3/4) of all owners to change the CC&Rs. Your CC&Rs are typical.

We have only tried to change our CC&Rs once and failed to get even 50% of the owners to vote (we need 51% to approve). If I wanted the changes to pass, I would organize other members to contact every owner by mail or phone and stress the importance of the amendment and their vote. Just sending out ballots will not likely be enough.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Greagory,

It's a lot of legwork, knocking on doors, explaining the reason for the changes, newsletter articles, etc. along with proxy forms (best to use directed proxies).

It will likely take a good year.

If the changeover to membership control just occurred, don't rush to change documents.
Instead, get a handle on the budget, reserves, and assessment amounts.

Do a reserve study.
If the association is responsible for a lot of major components (buildings, pools, etc.) it's best to have a professional do one. Otherwise, the board can do one themselves.

Here is a link to a thread on this forum about reserve studies (earlier broken links in the thread have been fixed later on in the thread):

Subject: Reserve Studies/Funds 101

Once you get a handle on the finances, then look at the governing docs.

CathyA3 (Ohio)
Posts: 6,299

Posted:

When we amended our CC&Rs, nearly everything was done via US mail, including the actual voting. This gave us an audit trail to prove that everything was done properly. The only time I went door-to-door was to deal with the few who hadn't voted, although this wasn't strictly necessary, more to make sure everyone had their say. As our state law and bylaws are written, voting can stop when we've reached either 75% Yes or 25% No votes - the voting period remains open until one of these things happen.

What helped us:

* We publicized the amendment process ahead of time via discussion at a board meeting, letters to each owner, and articles in the newsletter and on the web site.

* The amendments were for things that would provide a clear benefit to the owners: eg. a re-write of an unenforceable parking restriction, and a restriction on Tier 2 and Tier 3 sexual offenders. (Yes, the latter is legal in Ohio and was added to our CC&Rs at the recommendation of our attorney. The more serious sexual offenders can own property in my community but may not live here. We also have a daycare center adjacent to our property, which provides additional legal justification.)

* Our PM and the board kept track of the voting process as it occurred, and we sent out additional waves of voting materials as needed (for either those who hadn't voted yet and for new owners).

All in all, it took us about a year from start to finish. Our attorney wrote the amendments and cover letter to the owners, and recorded the amendments for us after they passed. The returned ballots are stored along with other association records.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Our docs call for 51% of all owners agreeing to a Bylaw change. 2/3rd of all owners agreeing to a Covenant change.

To The OP

Have any change(s) drawn up and they can be approved by petitions. You could take quite a long time to gather the signatures if the appropriate legal doc is properly drawn up by a lawyer.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By CathyA3 on 05/22/2020 5:29 AM
When we amended our CC&Rs, nearly everything was done via US mail, including the actual voting. This gave us an audit trail to prove that everything was done properly. The only time I went door-to-door was to deal with the few who hadn't voted, although this wasn't strictly necessary, more to make sure everyone had their say. As our state law and bylaws are written, voting can stop when we've reached either 75% Yes or 25% No votes - the voting period remains open until one of these things happen.

What helped us:

* We publicized the amendment process ahead of time via discussion at a board meeting, letters to each owner, and articles in the newsletter and on the web site.

* The amendments were for things that would provide a clear benefit to the owners: eg. a re-write of an unenforceable parking restriction, and a restriction on Tier 2 and Tier 3 sexual offenders. (Yes, the latter is legal in Ohio and was added to our CC&Rs at the recommendation of our attorney. The more serious sexual offenders can own property in my community but may not live here. We also have a daycare center adjacent to our property, which provides additional legal justification.)

* Our PM and the board kept track of the voting process as it occurred, and we sent out additional waves of voting materials as needed (for either those who hadn't voted yet and for new owners).

All in all, it took us about a year from start to finish. Our attorney wrote the amendments and cover letter to the owners, and recorded the amendments for us after they passed. The returned ballots are stored along with other association records.

Heed this solid advice.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Earth to Gregory. Come in Gregory.

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