In VA, can HOA Members make changes without the Board of Trustees

Not familiar with Virginia statute, however, the first question is: What do your Bylaws say about who approves amendments, and what the voting requirements are?

My last four neighborhoods allowed the Board to modify Bylaws with a majority Board vote - this is pretty common.

If there is such an interest in the community to change the Bylaws - and, the Board is aware of this support and, does not address it, the most common remedy would be conduct a recall of the directors - either individually, or all together.

From other posts by BH5, I see that this is a non-condominium HOA.

BH5, from a quick review of Virginia's HOA statute and nonprofit corporation statutes, I think the way to proceed is likely as follows:

1.
Petition for a Special Meeting of the Membership, with the agenda for the meeting being a vote on the amendment to the Bylaws. Most likely the HOA is then obliged to send out the notice for this meeting. If you quote what your Bylaws say about Special Meetings of the membership, and the Amendment process, I (and maybe others) can help more.

2.
Gather proxies.

3.
Have the Special Meeting. The President presides and had better not kvetch about his/her duty to hold the vote.

4.
Vote.

I would also review the pertinent sections of:
https://law.lis.virginia.gov/vacodepopularnames/property-owners-association-act/
https://law.lis.virginia.gov/vacodepopularnames/virginia-nonstock-corporation-act/

I advise getting an attorney to advise you. If you all do not have the money, wing it, but if the vote fails on a technicality, get the attorney, or replace the board with people who feel as you do.

What is it that you all want to change in the Bylaws?

Bylaw changes require a 2/3 vote by members. I have always assumed that means 2/3 voting in the affirmative for the change. Someone else thinks it means 2/3 casting a vote with plurality of the 2/3s deciding the outcome. Again. this is just one reason we are trying to change the bylaws from 40 years ago. Nobody knows what to do. It is too vague. We have never changed bylaws. However, a few resolutions have been enacted and that is done by the board without any vote from the members.

If you quote the bylaw in question verbatim, I am sure people here will be happy to give you their opinion. The veterans here are highly experienced on such interpretations. Granted said interpretation can be one of three things. Either: BH5 is correct in his interpretation; BH5 is not correct in his/her interpretation; or the language is ambiguous, in which case...

Are Resolutions specifically referenced in the Bylaws or Declaration? If not, "resolutions" are legally dumb and in my opinion, often result in an unlawful de facto amendment of the Bylaws or Declaration. Boards are often authorized to make "rules and regulations" that implement the Declaration's covenants or Bylaws, but said R&Rs had better not go outside the purview of the covenants or Bylaws.

The typical director thinks his/her job is to make decisions according to her or his own best judgment. The typical director thinks the board can make up rules, because the board is in charge. Nonsense. 'Best judgment' is only a part of a director's job. The director's job is to make decisions completely, 100% consistent with the governing documents and all law (municipal, state, federal, case law) and in her or his best judgment. Doing anything else is unlawful, per corporate law.

Perhaps BH5 means CCRs for 2/3 vote?

BH5,

-- Can you confirm that your HOA is subject to the Virginia Nonstock Corporation statute? Most Virginia HOAs are.

-- Are the Articles of Incorporation silent about who can amend the Bylaws?

-- If your Articles of Incorporation are silent about who can amend the Bylaws, and your HOA is subject to the Virginia Nonstock Corporation statute, then the situation is this: Your Bylaws, in the section on amending, conflict somewhat (but not entirely) with the Virginia Nonstock Corporation statute's section on amending. When a conflict arises between state law and a HOA's governing documents, normally the state law prevails. In this case, the statute says the Board may amend the Bylaws. The Bylaws though still permit the membership to amend the Bylaws by "a vote of the majority of a quorum of members present in person or by proxy." I will address what the statutes say about quorum in a subsequent post. For now, like the Bylaws say: Yes, your group can have a vote to amend the Bylaws via the annual meeting of members or by calling a Special Meeting of members. The problem is that, by my reading, and if the vote successfully amends the Bylaws, the statute allows the Board to just turn around and throw out the amendment (with some caveats that depend on what the amendment concerns, per section 13.1-893).

In my experience, most people could not absorb all this without a lot of study. Perhaps consider it preparation for meeting with an attorney.

Here is one route the membership could take to amend the Bylaws and make the amendment stick:

-- Call a Special Meeting of the Membership to amend the Articles of Incorporation. Comply with the quorum and other requirements for amending that are given in the Articles of Incorpotation.

-- The agenda of the Special Meeting should be "to amend the Articles of Incorporation so that the Articles reserve the right to amend the Bylaws exclusively to the membership via a majority vote, in person or by proxy, of a quorum of _____."

-- Get enough people to support the amendment of the Articles of Inc . Properly record the amended Articles with the County or state as needed.

-- Call a second Special Meeting for the membership to amend the Bylaws.

-- Get enough people to support the amendment of the Bylaws. Properly record with the county the amended Bylaws as needed.

If your head is not exploding at this point, I would be impressed.

Thank you AugustinD

-- Can you confirm that your HOA is subject to the Virginia Nonstock Corporation statute? Most Virginia HOAs are.

Yes, Virginia Nonstock Corporation

-- Are the Articles of Incorporation silent about who can amend the Bylaws?

Not exactly: "members shall vote to approve amendments to these Articles and the Bylaws and to elect Trusteed" which is the same as stated elsewhere in each of these sections.

-- If your Articles of Incorporation are silent

So you are saying we follow the order of progression up through the laws/regulations? I think the "Property Owners Act" is the next level before the Nonstock. Is that correct?

SheliaH

We'd have to wait 2 or 3 years. But yes, elections matter.

Once your group meets the requirements for asking for a Special Meeting, the Nonstock Corporation statute requires the corporation (association, board, yada) to participate. This means management, the board et cetera must support the holding of the Special Meeting in concrete ways. Furthermore this statute has a specific provision about a court ordering the board to cooperate in holding the Special Meeting (if the board is not cooperating). Below are just some of the relevant sections. Do consider doing a keyphrase search for "special meeting" of the nonstock corporation statute at https://law.lis.virginia.gov/vacodepopularnames/virginia-nonstock-corporation-act/

§ 13.1-839. Special meeting.
A. A corporation shall hold a special meeting of members:

1. On call of the chairman of the board of directors, the president, the board of directors, or the person or persons authorized to do so by the articles of incorporation or bylaws; or

2. In the absence of a provision in the articles of incorporation or bylaws stating who may call a special meeting of members, a special meeting of members may be called by members having one-twentieth of the votes entitled to be cast at such meeting.

B. Unless otherwise provided in the articles of incorporation, a written demand for a special meeting may be revoked by a writing, including an electronic transmission, to that effect received by the corporation prior to the receipt by the corporation of demands sufficient in number to require the holding of a special meeting.

C. If not otherwise fixed under § 13.1-840 or 13.1-844, the record date for determining members entitled to demand a special meeting is the date the first member signs the demand.

D. Except as otherwise determined by the board of directors acting pursuant to subsection C of § 13.1-844.2, members' meetings may be held at such place in or out of the Commonwealth as may be provided in the bylaws or, where not inconsistent with the bylaws, in the notice of the meeting.

E. Only business within the purpose or purposes described in the meeting notice required by subsection C of § 13.1-842 may be conducted at a special members' meeting.

Code 1950, § 13.1-213; 1956, c. 428; 1975, c. 500; 1985, c. 522; 2007, c. 925; 2012, c. 706; 2018, c. 265.

§ 13.1-840. Court-ordered meeting.
A. The circuit court of the city or county where a corporation's principal office is located, or, if none in the Commonwealth, where its registered office is located, may, after notice to the corporation, order a meeting of members to be held:

1. On petition of any member of the corporation entitled to participate in an annual meeting if an annual meeting was not held within 15 months after its last annual meeting or, if there has been no annual meeting, the date of its incorporation; or

2. On petition of a member who signed a demand for a special meeting that satisfies the requirements of § 13.1-839 if:

a. Notice of the special meeting was not given within 30 days after the date the demand was delivered to the corporation's secretary; or

b. The special meeting was not held in accordance with the notice.

B. The court may fix the time and place of the meeting, determine the members entitled to participate in the meeting, specify a record date for determining members entitled to notice of and to vote at the meeting, prescribe the form and content of the meeting notice, and enter other orders necessary to accomplish the purpose or purposes of the meeting.

§ 13.1-842. Notice of meeting.
A. 1. A corporation shall notify members of the date, time, and place, if any, of each annual and special members' meeting. Such notice shall be given no less than 10 nor more than 60 days before...

I think all states' nonprofit corp statutes and HOA/condo statutes do.


The developers are making the money and also, since they save cities a lot of money, mostly have city staff and often city councils on their side?

I think the laws are pretty clear and definitive in many states (not all), Virginia among them. But like you indicate, put these laws in the hands of volunteer amateurs, and it's often (most of the time) a disaster.

I think I like California's Davis-Stirling statutes the best. What are the big condo/hoa states? Florida, New York, Texas, Michigan? New York's system is a nightmare. Texas is a little better. Florida is pretty good but I am not sure if, practically speaking, enforcement per the law works. Michigan is appalling.

You're welcome. Good luck