Bylaws language - confusing, or not?

GeorgeS21 (Florida)
Posts: 3,808

Posted:

HOA single family, 659 properties, professionally managed.

We need to amend our Bylaws to provide that all Board members be owners of property in the community, and that all Officers be Board members - this has not been addressed in the 13 years since developer turnover. The Bylaws read:

"Section 1. Number. The affairs of this ASSOCIATION shall be initially managed by a Board of five (5) directors, who need not be members of the ASSOCIATION. There shall never be less than three (3) directors, not more than seven (7). The number of directors may be changed by an Amendment to these By-Laws made pursuant to Article XII."

And this about Officers:

"Section 1. Enumeration of Officers. The officers of this ASSOCIATION shall be a President, who shall at all times be a member of the Board of Directors, a Vice-President, a Secretary/Treasurer, and such other officers as the Board may from time to time by resolution create."

So, the process to modify Bylaws, as usual, is per the Bylaw - and, reads:

"Section 1. These Bylaws may be amended, at a regular or special meeting of the members, by a majority vote of members at a duly called meeting at which a quorum is present in person or by proxy, except that the the Federal Housing Administration or Veterans Administration shall have the right to veto amendments while there is Class B membership."

Our quorum requirement is 30% of membership.

Given the above, is the requirement, then, for 50% plus one of 30% x 659, or 198 x 50 = 99 plus 1 = 100? (my read), OR 659 x 0.5 +1 = 331?

Thoughts?

JohnC46 (South Carolina)
Posts: 14,265

Posted:

As the association has been turned over to the owners, there are no more Class B as they were the developers shares.

I say the Initial Period is over and BOD Members must be Members of the Association as in an owner and the BOD size must be 3 to 7 members. In our association the BOD decides this.

I say 659 Members and 30% for a Quorum so 198 Members for a Quorum.

Now comes the most often misunderstood part: You say, These Bylaws may be amended, at a regular or special meeting of the members, by a majority vote of members at a duly called meeting at which a quorum is present in person or by proxy.

I say this means the Majority Vote of ALL Members or 50% of the 659 (330), not just 50% of those in attendance so not as low as 50% of the 198 (99).

JohnC77 (California)
Posts: 562

Posted:

The approval is a majority of 659, or 330. Quorum requirement is meaningless, it's there just to call the meeting to order. You still need 330 yes votes.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By JohnC46 on 11/21/2020 2:02 PM

As the association has been turned over to the owners, there are no more Class B as they were the developers shares.

I say the Initial Period is over and BOD Members must be Members of the Association as in an owner and the BOD size must be 3 to 7 members. In our association the BOD decides this.

I say 659 Members and 30% for a Quorum so 198 Members for a Quorum.

Now comes the most often misunderstood part: You say, These Bylaws may be amended, at a regular or special meeting of the members, by a majority vote of members at a duly called meeting at which a quorum is present in person or by proxy.

I say this means the Majority Vote of ALL Members or 50% of the 659 (330), not just 50% of those in attendance so not as low as 50% of the 198 (99).

ADD ON
99 would be only 16% of the 659. Not a good way to run a railroad.

CathyA3 (Ohio)
Posts: 6,299

Posted:

It may be intended as a majority vote of all members, and that makes sense, but what it actually says is "by a majority vote of members at a duly called meeting" - ie, by a majority of the members who are present at the meeting.

Yes, it's confusing, and that portion of the bylaws really does need to be amended to say that it's a majority of all owners if that's what you want to happen.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

JohnC46,

Why would you say the requirements would change after the developer turns it over ... is it an assumption of this? I can't find much on it, but I do recall reading about associations modifying their Bylaws to amend this at turnover.

And, I have been involved in one neighborhood with bylaws that required a simple majority vote of the Board to change the bylaws. We did this, but then made the requirement a majority vote of the membership.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By GeorgeS21 on 11/21/2020 12:34 PM
"Section 1. These Bylaws may be amended, at a regular or special meeting of the members, by a majority vote of members at a duly called meeting at which a quorum is present in person or by proxy, except that the the Federal Housing Administration or Veterans Administration shall have the right to veto amendments while there is Class B membership."

Our quorum requirement is 30% of membership.

Given the above, is the requirement, then, for 50% plus one of 30% x 659, or 198 x 50 = 99 plus 1 = 100? (my read), OR 659 x 0.5 +1 = 331?

Thoughts?

It's as you think: At least 100 members must vote in the affirmative to amend the bylaws, from 30% x 659 = 198 for quorum, followed by 50% x 98 + 1 = 100 for a majority vote.

HOA's having a lower bar to amend the Bylaws, vis-a-vis the covenants, is common. Why? Because the covenants are the substantive property rights. The Bylaws in most states (and certainly Florida's) are all about process rather than property rights per se.

For fun, maybe you would like to quote the section of the Declaration on amending. Then this forum's readers may compare the wording.

Also at present it appears your HOA's directors do not have to be owners at the HOA. Florida law appears to me to be clear on the point. See for example: https://www.floridacondohoalawblog.com/2020/05/26/does-a-director-of-a-condominium-association-have-to-also-be-a-member/

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By AugustinD on 11/21/2020 5:25 PM
It's as you think: At least 100 members must vote in the affirmative to amend the bylaws, from 30% x 659 = 198 for quorum, followed by 50% x 98 + 1 = 100 for a majority vote.

Oops. To be clear, as long as quorum is achieved, it's a majority of those present in person or by proxy. If say 400 members show up in person or by proxy, then quorum is met, but 201 of those present must vote in the affirmative.

One hundred voting in the affirmative (from 198 attending) is the smallest possible number that could successfully amend the Bylaws.

JeffS31 (Virginia)
Posts: 40

Posted:

The wording is ambiguous. Ours is a little better:

These By-Laws may be amended at a duly noticed regular or special meeting of the Members
where a quorum is present by a majority vote by Members entitled to vote and voting at the
meeting in person or by proxy, except that if any of the Lots are security for a loan guaranteed or
insured by the Veterans Administration (“VA”) or the Federal Housing Administration (“FHA”),
and if there is a Class B Member, the FHA or the VA shall have the right to veto amendments.

The additional wording "majority vote by Members entitled to vote and voting" suggests that the measure would pass if a majority of the votes cast at the meeting are in favor, regardless of how many members there are.

It may be that yours is intended to mean this, but you might need a lawyer to interpret it for you based on how similar wording has been interpreted by the courts.

AugustinD
Posts: 5,144

Posted:

It's not ambiguous. If the Bylaws' intent were to obtain a majority of all 659 members, there would no mention of quorum.

JeffS31 (Virginia)
Posts: 40

Posted:

Quote:

Posted By AugustinD on 11/21/2020 5:59 PM
If the Bylaws' intent were to obtain a majority of all 659 members, there would no mention of quorum.

This makes sense. It would have been possible to word it more clearly, however.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By GeorgeS21 on 11/21/2020 4:30 PM
JohnC46,

Why would you say the requirements would change after the developer turns it over ... is it an assumption of this? I can't find much on it, but I do recall reading about associations modifying their Bylaws to amend this at turnover.

I say this as what the OP quoted was initially the BOD...
Thus I assumed the initial period would be over when the association was turned over to the owners.

And, I have been involved in one neighborhood with bylaws that required a simple majority vote of the Board to change the bylaws. We did this, but then made the requirement a majority vote of the membership.

I have seen such but I say any less than 50% of all owners is allowing a small group to control and is a slippery slope.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Augustin,

Yes, my math was based on "minimum" numbers, not what might actually show up at the membership meeting.

And, yes, I understood the lack of a provision mandating ownership for being a director is legal.

Most will find this typical - in my first conversation re directors and officers not being required to be owners with a couple of folks, they were very direct - "... you are wrong - directors always must be owners." I referred them to the document, their answer was "...you are wrong, it doesn't mean that way - directors always must be owners." :-)

JohnC46 (South Carolina)
Posts: 14,265

Posted:

George

As much as I dislike lawyers, it looks like you might need a legal opinion on the question.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

When we get the Bylaws rewritten, the attorney will be asked.

But, if I was rewriting them without an attorney, I would feel comfortable working the process based on 30% quorum x 50% plus one.

JohnC77 (California)
Posts: 562

Posted:

Quote:

Posted By GeorgeS21 on 11/22/2020 2:52 PM
When we get the Bylaws rewritten, the attorney will be asked.

But, if I was rewriting them without an attorney, I would feel comfortable working the process based on 30% quorum x 50% plus one.

And can you explain what quorum is for?

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By GeorgeS21 on 11/22/2020 2:52 PM
When we get the Bylaws rewritten, the attorney will be asked.

But, if I was rewriting them without an attorney, I would feel comfortable working the process based on 30% quorum x 50% plus one.

I would not. I never like a situation where a minority can control. Myself I prefer 51% approval by all Members for a Bylaw change and 2/3rds approval of all members for a Covenant change. That is just me and I would not buy into an association where a minority can change Bylaws nor Covenants.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By GeorgeS21 on 11/22/2020 1:53 PM
[snippage] in my first conversation re directors and officers not being required to be owners with a couple of folks, they were very direct - "... you are wrong - directors always must be owners." I referred them to the document, their answer was "...you are wrong, it doesn't mean that way - directors always must be owners." :-)

Ya know it's not just others, you and I that ask a HOA member or HOA director to identify what section of the governing documents supports the member's or director's position. It's judges too. From my favorite local HOA attorney: Judges want to see HOAs follow their governing documents. It's the first place judges look when a violation is alleged.

Another Floridian posted his Declaration recently. To amend the Declaration, a one-third quorum requirement must be met, and then 2/3rds of those present in person or by proxy may amend the Declaration. As little as 2/9 = 22.2% of the members can lawfully amend the Declaration. To amend the Bylaws, again the one-third quorum is met, but then a simple majority rules. As few as 1/6 + 1 of the Members can amend the Bylaws.

JohnC77 (California)
Posts: 562

Posted:

There are two separate parts to amending the Bylaws. First, it is a majority of the members. The ballots are counted at a meeting where quorum is present, either in person or by proxy. What about ballots?

Worst case scenario, 200 return proxies which indicate for quorum purpose only and 5 people show up at meeting. Three people could actually amend the Bylaws, according to some of you.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By JohnC77 on 11/22/2020 6:12 PM
Worst case scenario, 200 return proxies which indicate for quorum purpose only and 5 people show up at meeting. Three people could actually amend the Bylaws, according to some of you.

I disagree. For the OP's HOA, with 200 returning proxies and five showing in person: 205 are attending the meeting in person or by proxy; quorum is met; and a majority would be 103+ voting in the affirmative.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

JohnC46,

This is a real world situation - it simply relates our existing bylaws - no one else’s and is not related to how anyone feels about it, or would prefer it - just what it actually is.

JohnC77,

Not sure I understand. 200 plus 5 is 205 and Augustin did the math. Why, with proxies, assuming the vote is part of the proxy package, whether directed proxies or otherwise. The affirmative number required would be 103, right?

ChrisE8
Posts: 454

Posted:

AugustinD and CathyA3 are correct:

659 x 0.5 +1 = 331

I would also amend the amendment provision when you amend the bylaws, to make it clear what the threshold is (659 x 0.5 +1 = 331).

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By JohnC46 on 11/22/2020 4:31 PM

Posted By GeorgeS21 on 11/22/2020 2:52 PM
When we get the Bylaws rewritten, the attorney will be asked.

But, if I was rewriting them without an attorney, I would feel comfortable working the process based on 30% quorum x 50% plus one.

I would not. I never like a situation where a minority can control. Myself I prefer 51% approval by all Members for a Bylaw change and 2/3rds approval of all members for a Covenant change. That is just me and I would not buy into an association where a minority can change Bylaws nor Covenants.

I understand that point of view. Just to play devil's advocate, if owners can't even be bothered to complete a proxy form, that says to me that they don't care about this. If I had to choose between a small group of informed and engaged owners controlling things vs. a large group of uninformed and apathetic owners possibly skewing the vote in undesirable ways, I'd go with the small group.

Of course things don't always work out that neatly, and I'm sure there are alarming stories on both sides of this.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Chris,

I don't think either Cathy or Augustin said that ... both apparently reviewed the language and believe, whether it is a good idea or preferable, the language means a minimum of: 50% +1 (majority) of 30% of the 659 (quorum) owners must vote in the affirmative to amend the Bylaws. ie 100 yes votes.

Cathy and Augustin - didn't want to put words in your mouths, but wanted this to be clear?

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By GeorgeS21 on 11/23/2020 6:58 AM
I don't think either Cathy or Augustin said that ... both apparently reviewed the language and believe, whether it is a good idea or preferable, the language means a minimum of: 50% +1 (majority) of 30% of the 659 (quorum) owners must vote in the affirmative to amend the Bylaws. ie 100 yes votes.

Correct, this remains my position. Thanks for posting.

ChrisE8
Posts: 454

Posted:

Quote:

Posted By AugustinD on 11/23/2020 7:02 AM

Posted By GeorgeS21 on 11/23/2020 6:58 AM
I don't think either Cathy or Augustin said that ... both apparently reviewed the language and believe, whether it is a good idea or preferable, the language means a minimum of: 50% +1 (majority) of 30% of the 659 (quorum) owners must vote in the affirmative to amend the Bylaws. ie 100 yes votes.

Correct, this remains my position. Thanks for posting.

Sorry, fault is mine.

It's 50%+1 of whoever is at a meeting, and a meeting just requires 30%.

I copied and pasted the wrong formula, but I agree with AugustinD and CathyA3.

AugustinD
Posts: 5,144

Posted:

This site reinforces GeorgeS21's (and others') interpretation: https://www.floridacondohoalawblog.com/2019/05/19/quorum-and-amendment-vote-different/

===Start excerpt from 2019 article===

"... the wording of the document itself is key. Since the declaration is an important property rights document, most require some super-majority level of approval to amend. In my experience, two- thirds of the voting interests is probably the most common threshold.

There are major differences in how that voting requirement can be applied. For example, if your declaration says that amendments require “at least two thirds of the voting interests” to amend, you would need 67 votes in our hypothetical 100 lot HOA. You would only need 30 votes to call the meeting to order and conduct it, but the amendment could not pass even if everyone voted for it because 67 votes would be required.

On the other hand, if your declaration states that it can be amended by a vote of “not less than two thirds of the voting interests present, in person or by proxy, and voting at a duly notice meeting of the association at which a quorum has been established,” you have an entirely different situation. Here, you would need to establish your quorum as explained earlier, and then take the vote on the amendments. For example, if 60 owners attended the meeting in person or by proxy, with 50 voting in favor of the amendment and 10 opposed, the amendment would fail in the first scenario and pass in the second. Amendments to your declaration should be prepared by legal counsel, who should also explain the required vote to amend regarding any proposal.

=== End 2019 article Excerpt ===

I see no Florida case law on the point. Granted disputes over this issue, if deemed an "election issue," more likely would fall into the hands of DBPR arbitrators long before they reached court.

Or IMO more likely, there simply are no disputes. The governing documents' wording on amendments says what it says, and HOA/condo attorneys throughout Florida see things as this article and others at this forum do.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By GeorgeS21 on 11/23/2020 6:58 AM
Chris,

I don't think either Cathy or Augustin said that ... both apparently reviewed the language and believe, whether it is a good idea or preferable, the language means a minimum of: 50% +1 (majority) of 30% of the 659 (quorum) owners must vote in the affirmative to amend the Bylaws. ie 100 yes votes.

Cathy and Augustin - didn't want to put words in your mouths, but wanted this to be clear?

My reading of the current bylaw is what George just said: a majority of those at the meeting (either in person or by proxy), not a majority of the membership.

I can understand why people find this confusing since it allows a minority of homeowners to make the decision, which seems "wrong".

JohnC77 (California)
Posts: 562

Posted:

I think people are not understanding the language that was posted. IF, it was ok to be amended by a majority of quorum, it would state such, for instance, these Bylaws may be amended by majority of quorum at a duly noticed meeting of the members.

What was posted is listed in three parts, the percentage to amend, the type of meeting and the meeting requirement or quorum. Most boilerplate government docs use either a majority of members of 51% as the number for quorum. Generally to amend Bylaws, the standard is a majority or 51% of members or voting power and CCRs are 66 2/3%. In elections of directors generally quorum is requires before votes can be counted, but there is no requirement as to how many these need to get elected. They need more than their opponents or at least one.

Let's say the community has 100 units, so the original documents needed 51 or 67 votes to pass, but you never could get even people to vote for directors, so you lowers to 30%. So now your reasoning is that instead of 26 and 35, you only need 16. But still you can't get people to vote so you lower to 10% and now you only need 6 and 7 to pass your governing documents. I don't that was the spirit. I also don't think lenders would approve such a move.

I would get a get a good corporate lawyer who has something more between the ears than just air.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By CathyA3 on 11/23/2020 6:55 AM

Posted By JohnC46 on 11/22/2020 4:31 PM

Posted By GeorgeS21 on 11/22/2020 2:52 PM
When we get the Bylaws rewritten, the attorney will be asked.

But, if I was rewriting them without an attorney, I would feel comfortable working the process based on 30% quorum x 50% plus one.

I would not. I never like a situation where a minority can control. Myself I prefer 51% approval by all Members for a Bylaw change and 2/3rds approval of all members for a Covenant change. That is just me and I would not buy into an association where a minority can change Bylaws nor Covenants.

I understand that point of view. Just to play devil's advocate, if owners can't even be bothered to complete a proxy form, that says to me that they don't care about this. If I had to choose between a small group of informed and engaged owners controlling things vs. a large group of uninformed and apathetic owners possibly skewing the vote in undesirable ways, I'd go with the small group.

Of course things don't always work out that neatly, and I'm sure there are alarming stories on both sides of this.

I get concerned when a small group can control. If a majority needed and they can not be shown/convinced of the need, then maybe the need is not there other than in the eyes of a few.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Will post the quoted portion, again.

"Section 1. These Bylaws may be amended, at a regular or special meeting of the members, by a majority vote of members at a duly called meeting at which a quorum is present in person or by proxy, except that the the Federal Housing Administration or Veterans Administration shall have the right to veto amendments while there is Class B membership."

Tearing it apart a bit ...

1. “...at which a quorum is present in person or by proxy ...”. So, 30% x 659

2. “ ...majority vote of members at a duly called meeting...”. So, 50% + 1

Doing it backwards yields the same math, right?

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By JohnC77 on 11/23/2020 11:24 AM
I think people are not understanding the language that was posted. IF, it was ok to be amended by a majority of quorum, it would state such,

In my opinion, it does state such, and such wording is common. All who bought into the HOA knew in advance the covenant for amending.

Quote:

Posted By JohnC77 on 11/23/2020 11:24 AM

What was posted is listed in three parts, the percentage to amend, the type of meeting and the meeting requirement or quorum. Most boilerplate government docs use either a majority of members of 51% as the number for quorum.

I am not at all persuaded of the above.

-- Florida Statute 720 (for non-condo HOAs) at 720.306 nullifies any Declaration/Bylaws quorum requirement for membership meetings that is over 30%. (For Florida Condos, FS 718.112 nullifies any quorum requirement over 50%.)

Here's ten South Carolina HOA/condos, with their quorum requirements for membership meetings, whose Bylaws came up randomly on a search

10% for quorum, https://nhe-inc.com/wp-content/uploads/2015/03/Pelham-Springs-Bylaws-HOA.pdf

30% for quorum, http://www.chickasawpoint.org/files/3813/6742/3461/Bylaws.pdf (plus, amendments to the Bylaws are by majority vote of the board)

25% for quorum, http://www.stonoviewsc.com/wp-content/uploads/2016/08/Stonoview-CCRs.pdf

51% for quorum, http://www.pointcomfortpoa.com/files/Point_Comfort_CCR_final.pdf

60% for quorum, http://fsresidentialcharleston.com/StilesPoint/Stiles%20Point%20By%20Laws.pdf

10% for quorum, http://www.fsresidentialcharleston.com/Appian/Appian%20Place%20Bylaws.pdf

25% for quorum, http://www.adamsprops.com/HamlinPark/HamlinParkByLaws.pdf (plus, amendments to the Bylaws may be made by majority vote of the Board)

20% for quorum, https://harbisonhoa.com/wp-content/uploads/2018/05/Bylaws-of-The-Harbison-Community-Association-2015.pdf

10% for quorum, https://phillipjenkins.com/a%20Restrictions/Ascot%20Bylaws.pdf

45% for quorum for amending Bylaws by vote of the membership, https://www.portroyalplantation.net/ResourceCenter/Download/38730/2019%20amended%20and%20restated%20bylaws%20ltr%2012_2319?doc_id=2686392&print=1&view=1

Seventy percent of the random sample of South Carolina HOAs/Condos above have quorum requirements at 30% or lower.

I bet neither of us can prove anything here, but anecdotally speaking, in my experience, the quorum requirement for membership meetings is usually below 40%.

In California, this site does not give much support to the notion that quorums of 50% are the norm:
https://www.davis-stirling.com/HOME/Member-Quorum

Quote:

Posted By JohnC77 on 11/23/2020 11:24 AM
Generally to amend Bylaws, the standard is a majority or 51% of members or voting power and CCRs are 66 2/3%.

I'd say those numbers are not uncommon. But I would not call them "standard."

JohnC77 (California)
Posts: 562

Posted:

What it is saying is you can count the votes at a regular or special meeting of the members as long as quorum is satisfied. The votes required are a majority of 659.

JohnC77 (California)
Posts: 562

Posted:

I think you folks misunderstand that the meaning of quorum is: the minimum number of members of an assembly or society that must be present at any of its meetings to make the proceedings of that meeting valid.

JohnC77 (California)
Posts: 562

Posted:

Quote:

Posted By AugustinD on 11/23/2020 12:08 PM

Posted By JohnC77 on 11/23/2020 11:24 AM
I think people are not understanding the language that was posted. IF, it was ok to be amended by a majority of quorum, it would state such,

In my opinion, it does state such, and such wording is common. All who bought into the HOA knew in advance the covenant for amending.

Quote:

Posted By JohnC77 on 11/23/2020 11:24 AM

What was posted is listed in three parts, the percentage to amend, the type of meeting and the meeting requirement or quorum. Most boilerplate government docs use either a majority of members of 51% as the number for quorum.

I am not at all persuaded of the above.

-- Florida Statute 720 (for non-condo HOAs) at 720.306 nullifies any Declaration/Bylaws quorum requirement for membership meetings that is over 30%. (For Florida Condos, FS 718.112 nullifies any quorum requirement over 50%.)

Here's ten South Carolina HOA/condos, with their quorum requirements for membership meetings, whose Bylaws came up randomly on a search

10% for quorum, https://nhe-inc.com/wp-content/uploads/2015/03/Pelham-Springs-Bylaws-HOA.pdf

30% for quorum, http://www.chickasawpoint.org/files/3813/6742/3461/Bylaws.pdf (plus, amendments to the Bylaws are by majority vote of the board)

25% for quorum, http://www.stonoviewsc.com/wp-content/uploads/2016/08/Stonoview-CCRs.pdf

51% for quorum, http://www.pointcomfortpoa.com/files/Point_Comfort_CCR_final.pdf

60% for quorum, http://fsresidentialcharleston.com/StilesPoint/Stiles%20Point%20By%20Laws.pdf

10% for quorum, http://www.fsresidentialcharleston.com/Appian/Appian%20Place%20Bylaws.pdf

25% for quorum, http://www.adamsprops.com/HamlinPark/HamlinParkByLaws.pdf (plus, amendments to the Bylaws may be made by majority vote of the Board)

20% for quorum, https://harbisonhoa.com/wp-content/uploads/2018/05/Bylaws-of-The-Harbison-Community-Association-2015.pdf

10% for quorum, https://phillipjenkins.com/a%20Restrictions/Ascot%20Bylaws.pdf

45% for quorum for amending Bylaws by vote of the membership, https://www.portroyalplantation.net/ResourceCenter/Download/38730/2019%20amended%20and%20restated%20bylaws%20ltr%2012_2319?doc_id=2686392&print=1&view=1

Seventy percent of the random sample of South Carolina HOAs/Condos above have quorum requirements at 30% or lower.

I bet neither of us can prove anything here, but anecdotally speaking, in my experience, the quorum requirement for membership meetings is usually below 40%.

In California, this site does not give much support to the notion that quorums of 50% are the norm:
https://www.davis-stirling.com/HOME/Member-Quorum

Quote:

Posted By JohnC77 on 11/23/2020 11:24 AM
Generally to amend Bylaws, the standard is a majority or 51% of members or voting power and CCRs are 66 2/3%.

I'd say those numbers are not uncommon. But I would not call them "standard."

This language is in the only two examples I opened:

A majority of the Directors then in office (but not less than two (2)) shall constitute a quorum for the transaction of business. Every act performed or decisions made by a majority of the Directors present at a duly held meeting at which a quorum is present shall be regarded as the act of the Board. A meeting at which a quorum is initially present may continue to
transact business, notwithstanding the withdrawal of Directors, if any action taken is approved by a majority of the required quorum for that meeting.

Notice the word I highlighted in bold, PRESENT. Is that in George'ss Bylaws? NOPE

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By JohnC77 on 11/23/2020 12:26 PM

This language is in the only two examples I opened:

A majority of the Directors then in office (but not less than two (2)) shall constitute a quorum for the transaction of business. Every act performed or decisions made by a majority of the Directors present at a duly held meeting at which a quorum is present shall be regarded as the act of the Board. A meeting at which a quorum is initially present may continue to
transact business, notwithstanding the withdrawal of Directors, if any action taken is approved by a majority of the required quorum for that meeting.

The subject of my post was quorum requirements for membership meetings, not board meetings.

As for your contention that the OP's Bylaws translate to what you say, the Bylaws I have seen that require the percentage to be of all members of the HOA/Condo (and not merely those attending the meeting in person or by proxy, where quorum is met) are clear that the entire membership is what is meant.

You and I are not going to agree on this. Chances are good that GeorgeS21 will not be able to persuade all others at his HOA of his interpretation without consulting the HOA attorney.

JohnC77 (California)
Posts: 562

Posted:

The purpose of the posting for board meetings is to compare the word present that is there for board meeting, but not in for member meeting.

If the word present wasn't inserted, it could be interpreted that to pass a motion, then a majority of the board would be needed to pass the motion. For example, if there is a board of seven, if the word present is there, then 4 is quorum and three would be a majority to pass. If the would present was omitted, you could have a meeting, but action taken would required the majority of the board which would be 4.

This isn't from experience, but I have a little over 400 governing docs throughout the US and I would say 85% have majority as quorum. Maybe it's just a California thing, maybe it because a lot of them predate 2000 a nd a lot have never been amended.

George doesn't need a HOA attorney to interpreted this, he needs a good corporate attorney as this is corporate language. In addition, if you look at the legal firms that created the governing docs, the majority were not HOA attorneys, but corporate attorneys.

JohnC77 (California)
Posts: 562

Posted:

I happen to be working on a $1M roofing loan for an association in California. The CCRs state that approval of a majority of homeowners is required for approval. In 2014 the state changed the requirement to "the approval of a majority of a quorum of members". This now cuts the approval as much as half depending on the number of votes cast.

JohnC77 (California)
Posts: 562

Posted:

Quote:

Posted By AugustinD on 11/23/2020 12:35 PM

Posted By JohnC77 on 11/23/2020 12:26 PM

This language is in the only two examples I opened:

A majority of the Directors then in office (but not less than two (2)) shall constitute a quorum for the transaction of business. Every act performed or decisions made by a majority of the Directors present at a duly held meeting at which a quorum is present shall be regarded as the act of the Board. A meeting at which a quorum is initially present may continue to
transact business, notwithstanding the withdrawal of Directors, if any action taken is approved by a majority of the required quorum for that meeting.

The subject of my post was quorum requirements for membership meetings, not board meetings.

As for your contention that the OP's Bylaws translate to what you say, the Bylaws I have seen that require the percentage to be of all members of the HOA/Condo (and not merely those attending the meeting in person or by proxy, where quorum is met) are clear that the entire membership is what is meant.

You and I are not going to agree on this. Chances are good that GeorgeS21 will not be able to persuade all others at his HOA of his interpretation without consulting the HOA attorney.

I have two associations whose docs were written by the same law firm. The law firm identifies 59 attorneys, none of which specializes in HOA's. Matter of fact, if you put in HOA in their search bar, Hoag Hospital Foundation comes up, no HOA information.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By JohnC46 on 11/23/2020 11:50 AM

Posted By CathyA3 on 11/23/2020 6:55 AM

Posted By JohnC46 on 11/22/2020 4:31 PM

Posted By GeorgeS21 on 11/22/2020 2:52 PM
When we get the Bylaws rewritten, the attorney will be asked.

But, if I was rewriting them without an attorney, I would feel comfortable working the process based on 30% quorum x 50% plus one.

I would not. I never like a situation where a minority can control. Myself I prefer 51% approval by all Members for a Bylaw change and 2/3rds approval of all members for a Covenant change. That is just me and I would not buy into an association where a minority can change Bylaws nor Covenants.

I understand that point of view. Just to play devil's advocate, if owners can't even be bothered to complete a proxy form, that says to me that they don't care about this. If I had to choose between a small group of informed and engaged owners controlling things vs. a large group of uninformed and apathetic owners possibly skewing the vote in undesirable ways, I'd go with the small group.

Of course things don't always work out that neatly, and I'm sure there are alarming stories on both sides of this.

I get concerned when a small group can control. If a majority needed and they can not be shown/convinced of the need, then maybe the need is not there other than in the eyes of a few.

Corruption happens when power is in the hands of only a few people.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By JohnC46 on 11/23/2020 1:32 PM
Corruption happens when power is in the hands of only a few people.

At many HOAs/Condos, and as long as a quorum is present, a person may be elected to a Board by as little as one person, with the others making up the quorum abstaining from voting. Is this a problem? If so, time and again those who author governing documents do not seem to think so.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

To me a BOD Election is not in the same "league" as Bylaw and Covenant changes. A "bad apple" on the BOD can be offset by other BOD Members and easily changed come election time. A bad Covenant/Bylaw stands alone in its power/abuse and especially easy to go bad/stay bad when only a few can make it happen.

As someone posted, Quorums can run from 10% to 60%. So let us use a association with 250 members. a Fair median:

10% of 250 is 25 so 50%+ is 13 thus 13 of 250 can make changes.
60% of 250 is 150 so 50%+ is 76 thus 76 of 250 can make changes.

I do not like any of the above.

Additionally, to me, 60% is to high to establish a Quorum. Few could establish one at 60% but this is establishing a Quorum, not changing the association structure. A totally different subject.

We were 50% for Quorum and changed it to 20%. We are 112 owners and 50%+ of all owners (57) must agree to a Bylaw change and 2/3ds+ (75) of all owners must agree to a Covenant change. I think these amounts are fair and protective.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By JohnC77 on 11/23/2020 12:26 PM
This language is in the only two examples I opened:

A majority of the Directors then in office (but not less than two (2)) shall constitute a quorum for the transaction of business. Every act performed or decisions made by a majority of the Directors present at a duly held meeting at which a quorum is present shall be regarded as the act of the Board. A meeting at which a quorum is initially present may continue to
transact business, notwithstanding the withdrawal of Directors, if any action taken is approved by a majority of the required quorum for that meeting.

Quote:

Posted By JohnC77 on 11/23/2020 12:55 PM
If the would present was omitted, you could have a meeting, but action taken would required the majority of the board which would be 4.

If the word "present" were omitted, then the quorum requirement would be superfluous. That is, without the word "present," the quorum requirement could also be omitted. But the quorum requirement was not omitted. Why? Because the authors wanted less than a majority of all directors then-in-office to be able to make lawful decisions, as long as quorum was met.

The reasoning is the same for GeorgeS21's Bylaws: The authors required a quorum so that less than a majority, but still a meaningful number (namely, a majority of 30%), of the total membership could make decisions like amending the covenants.

Here's a random sample of a dozen California HOAs and what their requirements for quorum are:

5% (five percent) https://www.brentwoodhomeowners.org/cm/2009_BHA-Bylaws-2015.pdf
50%+ (a majority) https://chateaulakesanmarcos.com/pdf/Bylaws.pdf
25% http://media.crmls.org/medias/42fcaa8c-a206-4042-98de-39ac4eda58c1.pdf
50+% https://www.palomarridge.com/uploads/1/0/2/9/10297001/prbylaws.pdf
51% https://casadeoaks.org/wp-content/uploads/2018/10/CDO_Bylaws_2012.pdf
25% https://cadden.com/wp-content/uploads/2014/12/Bylaws85.pdf
10% http://www.tlhoa.org/wp-content/uploads/2013/03/TLHOA-By-Laws.pdf
25% https://u.realgeeks.media/realtyofcolorado%2FByLaws_-_Canyon_Creek_Condominiums_HOA.pdf
51% http://www.trustedra.com/uploads/1/2/6/7/12676993/rw_bylawas.pdf
25% http://countrysidemagnolia.com/wp-content/uploads/2016/11/Magnolia-Bylaws-2015.pdf
50% https://tnhoa.com/wp-content/uploads/2019/03/TNHOABylaws.pdf
51% http://graeaglemeadowshoa.com/election-rules-secure.pdf

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By JohnC46 on 11/23/2020 3:17 PM
To me a BOD Election is not in the same "league" as Bylaw and Covenant changes. A "bad apple" on the BOD can be offset by other BOD Members and easily changed come election time. A bad Covenant/Bylaw stands alone in its power/abuse and especially easy to go bad/stay bad when only a few can make it happen.

My observations, for what they are worth:

-- Some Bylaws set different quorum requirements for different categories of membership meetings.

-- Even recently, even I have commented that covenants are generally made hard to change, requiring typically a super majority. But I have not surveyed Declarations the way I did Bylaws. Maybe I will (oh the recreation of a pandemic).

-- The courts have absolutely made reference to "the tyranny of the majority" (sic) over the minority when it comes to some HOA votes. I gave some examples here: https://www.hoatalk.com/Forum/tabid/55/view/topic/postid/222735/Default.aspx . If the courts are striking amendments approved by a majority and pursuant to the Declaration's amendments procedure, then I think there is no question the courts would strike amendments approved by a minority of the total membership when the amendments are way-out-there.

JohnC77: I do not care whether it's a corporate attorney or a HOA attorney advising GeorgeS21. Either could give the wrong advice. Either could give the right advice. I would not bet one way or the other.

JohnC77 (California)
Posts: 562

Posted:

Quote:

Posted By AugustinD on 11/23/2020 3:32 PM

Posted By JohnC77 on 11/23/2020 12:26 PM
This language is in the only two examples I opened:

A majority of the Directors then in office (but not less than two (2)) shall constitute a quorum for the transaction of business. Every act performed or decisions made by a majority of the Directors present at a duly held meeting at which a quorum is present shall be regarded as the act of the Board. A meeting at which a quorum is initially present may continue to
transact business, notwithstanding the withdrawal of Directors, if any action taken is approved by a majority of the required quorum for that meeting.

Quote:

Posted By JohnC77 on 11/23/2020 12:55 PM
If the would present was omitted, you could have a meeting, but action taken would required the majority of the board which would be 4.

If the word "present" were omitted, then the quorum requirement would be superfluous. That is, without the word "present," the quorum requirement could also be omitted. But the quorum requirement was not omitted. Why? Because the authors wanted less than a majority of all directors then-in-office to be able to make lawful decisions, as long as quorum was met.

The reasoning is the same for GeorgeS21's Bylaws: The authors required a quorum so that less than a majority, but still a meaningful number (namely, a majority of 30%), of the total membership could make decisions like amending the covenants.

Here's a random sample of a dozen California HOAs and what their requirements for quorum are:

5% (five percent) https://www.brentwoodhomeowners.org/cm/2009_BHA-Bylaws-2015.pdf
50%+ (a majority) https://chateaulakesanmarcos.com/pdf/Bylaws.pdf
25% http://media.crmls.org/medias/42fcaa8c-a206-4042-98de-39ac4eda58c1.pdf
50+% https://www.palomarridge.com/uploads/1/0/2/9/10297001/prbylaws.pdf
51% https://casadeoaks.org/wp-content/uploads/2018/10/CDO_Bylaws_2012.pdf
25% https://cadden.com/wp-content/uploads/2014/12/Bylaws85.pdf
10% http://www.tlhoa.org/wp-content/uploads/2013/03/TLHOA-By-Laws.pdf
25% https://u.realgeeks.media/realtyofcolorado%2FByLaws_-_Canyon_Creek_Condominiums_HOA.pdf
51% http://www.trustedra.com/uploads/1/2/6/7/12676993/rw_bylawas.pdf
25% http://countrysidemagnolia.com/wp-content/uploads/2016/11/Magnolia-Bylaws-2015.pdf
50% https://tnhoa.com/wp-content/uploads/2019/03/TNHOABylaws.pdf
51% http://graeaglemeadowshoa.com/election-rules-secure.pdf

WOW..you really don't get it!

JohnC77 (California)
Posts: 562

Posted:

Quote:

Posted By AugustinD on 11/23/2020 3:32 PM

Posted By JohnC77 on 11/23/2020 12:26 PM
This language is in the only two examples I opened:

A majority of the Directors then in office (but not less than two (2)) shall constitute a quorum for the transaction of business. Every act performed or decisions made by a majority of the Directors present at a duly held meeting at which a quorum is present shall be regarded as the act of the Board. A meeting at which a quorum is initially present may continue to
transact business, notwithstanding the withdrawal of Directors, if any action taken is approved by a majority of the required quorum for that meeting.

Quote:

Posted By JohnC77 on 11/23/2020 12:55 PM
If the would present was omitted, you could have a meeting, but action taken would required the majority of the board which would be 4.

If the word "present" were omitted, then the quorum requirement would be superfluous. That is, without the word "present," the quorum requirement could also be omitted. But the quorum requirement was not omitted. Why? Because the authors wanted less than a majority of all directors then-in-office to be able to make lawful decisions, as long as quorum was met.

The reasoning is the same for GeorgeS21's Bylaws: The authors required a quorum so that less than a majority, but still a meaningful number (namely, a majority of 30%), of the total membership could make decisions like amending the covenants.

Here's a random sample of a dozen California HOAs and what their requirements for quorum are:

5% (five percent) https://www.brentwoodhomeowners.org/cm/2009_BHA-Bylaws-2015.pdf
50%+ (a majority) https://chateaulakesanmarcos.com/pdf/Bylaws.pdf
25% http://media.crmls.org/medias/42fcaa8c-a206-4042-98de-39ac4eda58c1.pdf
50+% https://www.palomarridge.com/uploads/1/0/2/9/10297001/prbylaws.pdf
51% https://casadeoaks.org/wp-content/uploads/2018/10/CDO_Bylaws_2012.pdf
25% https://cadden.com/wp-content/uploads/2014/12/Bylaws85.pdf
10% http://www.tlhoa.org/wp-content/uploads/2013/03/TLHOA-By-Laws.pdf
25% https://u.realgeeks.media/realtyofcolorado%2FByLaws_-_Canyon_Creek_Condominiums_HOA.pdf
51% http://www.trustedra.com/uploads/1/2/6/7/12676993/rw_bylawas.pdf
25% http://countrysidemagnolia.com/wp-content/uploads/2016/11/Magnolia-Bylaws-2015.pdf
50% https://tnhoa.com/wp-content/uploads/2019/03/TNHOABylaws.pdf
51% http://graeaglemeadowshoa.com/election-rules-secure.pdf

Exactly what does quorum have to do with this discussion, I am totally confused!

JohnC77 (California)
Posts: 562

Posted:

Quote:

Posted By AugustinD on 11/23/2020 3:32 PM

Posted By JohnC77 on 11/23/2020 12:26 PM
This language is in the only two examples I opened:

A majority of the Directors then in office (but not less than two (2)) shall constitute a quorum for the transaction of business. Every act performed or decisions made by a majority of the Directors present at a duly held meeting at which a quorum is present shall be regarded as the act of the Board. A meeting at which a quorum is initially present may continue to
transact business, notwithstanding the withdrawal of Directors, if any action taken is approved by a majority of the required quorum for that meeting.

Quote:

Posted By JohnC77 on 11/23/2020 12:55 PM
If the would present was omitted, you could have a meeting, but action taken would required the majority of the board which would be 4.

If the word "present" were omitted, then the quorum requirement would be superfluous. That is, without the word "present," the quorum requirement could also be omitted. But the quorum requirement was not omitted. Why? Because the authors wanted less than a majority of all directors then-in-office to be able to make lawful decisions, as long as quorum was met.

The reasoning is the same for GeorgeS21's Bylaws: The authors required a quorum so that less than a majority, but still a meaningful number (namely, a majority of 30%), of the total membership could make decisions like amending the covenants.

Here's a random sample of a dozen California HOAs and what their requirements for quorum are:

5% (five percent) https://www.brentwoodhomeowners.org/cm/2009_BHA-Bylaws-2015.pdf
50%+ (a majority) https://chateaulakesanmarcos.com/pdf/Bylaws.pdf
25% http://media.crmls.org/medias/42fcaa8c-a206-4042-98de-39ac4eda58c1.pdf
50+% https://www.palomarridge.com/uploads/1/0/2/9/10297001/prbylaws.pdf
51% https://casadeoaks.org/wp-content/uploads/2018/10/CDO_Bylaws_2012.pdf
25% https://cadden.com/wp-content/uploads/2014/12/Bylaws85.pdf
10% http://www.tlhoa.org/wp-content/uploads/2013/03/TLHOA-By-Laws.pdf
25% https://u.realgeeks.media/realtyofcolorado%2FByLaws_-_Canyon_Creek_Condominiums_HOA.pdf
51% http://www.trustedra.com/uploads/1/2/6/7/12676993/rw_bylawas.pdf
25% http://countrysidemagnolia.com/wp-content/uploads/2016/11/Magnolia-Bylaws-2015.pdf
50% https://tnhoa.com/wp-content/uploads/2019/03/TNHOABylaws.pdf
51% http://graeaglemeadowshoa.com/election-rules-secure.pdf

The first one you highlighted I know personally while a Board member of a City of Los Angeles neighborhood Council. They are NOT a HOA regulated by the Davis-Stirling or Corporation Code. They don't have a set of CCRs. There are a number of these community of homes that are 501(C)(4).

The election rules for Graeagle Meadows are outdated by 13 years.

Did you even read any of these?

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By JohnC77 on 11/23/2020 10:59 PM
Exactly what does quorum have to do with this discussion

Quote:

Posted By JohnC77 on 11/23/2020 12:26 PM

A majority of the Directors then in office (but not less than two (2)) shall constitute a quorum for the transaction of business. Every act performed or decisions made by a majority of the Directors present at a duly held meeting at which a quorum is present shall be regarded as the act of the Board. A meeting at which a quorum is initially present may continue to
transact business, notwithstanding the withdrawal of Directors, if any action taken is approved by a majority of the required quorum for that meeting.

Quote:

Posted By AugustinD on 11/23/2020 3:32 PM
If the word "present" were omitted, then the quorum requirement would be superfluous. That is, without the word "present," the quorum requirement could also be omitted. But the quorum requirement was not omitted. Why? Because the authors wanted less than a majority of all directors then-in-office to be able to make lawful decisions, as long as quorum was met.

If one omits the word "present" and omits the phrases involving quorum, then one gets:

"Every act performed or decisions made by a majority of the Directors at a duly held meeting shall be regarded as the act of the Board."

You say that "at" does not mean the same as "presence" and so on. In your scenario, seven directors hold office. The required majority for acts by the Board to be lawful would then be four. You objected to the required majority being four as follows:

Quote:

Posted By JohnC77 on 11/23/2020 12:55 PM
If the word present wasn't inserted, it could be interpreted that to pass a motion, then a majority of the board would be needed to pass the motion. For example, if there is a board of seven, if the word present is there, then 4 is quorum and three would be a majority to pass. If the would present was omitted, you could have a meeting, but action taken would required the majority of the board which would be 4.

Why is the verbiage about quorum in your paragraph (and GeorgeS21's Bylaws paragraph)? The reason this verbiage is in both paragraphs is to permit decisions to be made by less than a majority of the Board (and less than a majority of the membership), as long as quorum is met.

Regarding what is usual in HOA governing docs for membership meeting quora: The reader can judge for her- or himself. I maintain that quorum requirements are all over the map, but tend to be under 40%.