how many directors allowed?

AdamL1 (UnitedStates)
Posts: 559

Posted:

Articles of Incorp says 3 exactly. The number may be changed by amendment to the Bylaws.
Bylaws say at least 3 people.

How do I interpret this here? AoI are above the Bylaws. How can the quantity of Board members be changed by amending the Bylaws if the AoI still sit on top of it saying only 3?

As it reads here, could there be 4 Board members?

Articles of Incorp
The affairs of this Corporation shall be managed by a Board of three (3)
Directors, who need not be Members of the Association. The number of Directors
may be changed by amendment of the Bylaws of the Corporation, but in no
event shall the number be less than three (3).

Bylaws
Section 4.1. Number and Qualification. The Property, business and
affairs of the Corporation shall be governed and managed by a Board of Directors
composed of at least three (3) persons, who need not be Members of the Corporation.
Directors shall not receive any salary or other compensation for their services as
Directors; provided, however, that nothing herein contained shall be construed to
preclude any Director from serving the Corporation in some other capacity and
receiving compensation therefor.

BarbaraT1 (Texas)
Posts: 821

Posted:

The Articles don’t say ONLY 3, they say 3, changeable by amending the bylaws, but never less than 3.

If the articles allow the number to be changed, but not to less than 3, the only logical conclusion is that they can be changed to more than 3.

But since you need a lawyer to draft the bylaw amendment anyway, why not just ask them to weigh in on this issue too?

AdamL1 (UnitedStates)
Posts: 559

Posted:

step back from the amending conversation. As it reads now.

Articles says exactly three.
Bylaws says at least three.

Can there be 4 Board Members as its written now?

AdamL1 (UnitedStates)
Posts: 559

Posted:

Quote:

Posted By BarbaraT1 on 01/24/2022 11:14 AM
The Articles don’t say ONLY 3, they say 3

dont' say 3, the say 3 --> not sure what you mean here.
"...shall be managed by a Board of three (3)..."

MichaelH34 (North Carolina)
Posts: 179

Posted:

Not sure why you're getting stuck on the first sentence. The Articles are saying that the minimum # is 3 BOD members. It says nothing about the maximum. Therefore you must have at least 3 and up to a bajillion. Or more.

The bylaws essentially say the same thing.

MichaelH34 (North Carolina)
Posts: 179

Posted:

Barbara, why "But since you need a lawyer to draft the bylaw amendment anyway..."

Are you speaking from experience in Texas or do you know that's also required in Idaho. I ask because I am fairly sure that's not the case in NC.

AugustinD
Posts: 3,698

Posted:

Thank you for posting this interesting situation.

Can you please review what the AoI says about amending the AoI?

Also, would you please repeat what it takes to amend the Bylaws?

For now --

I think this situation is arguably (as you point out) in the 'contractual contradiction' category. To resolve a bona fide conflict in the language, consider advice (commonly repeated on the net, in so many words) like the following:

If the written text is not clear, the court will accept extrinsic evidence in order determine the purpose of the clause, the commercial context of the whole agreement, and the background to the preparation of the document. The language of the written provision in question will then be read against these factors in order to ascertain a correct meaning. Therefore parol evidence is different to facts relevant to interpretation.

There's also the contra proferentum rule, that says ambiguities should be interpreted against the party who wrote the contract. Here, the owners did not write the contract. Arguably what is in the owners favor is to be able to adjust the number of directors to three or more as desired.

Lastly, by my reading the courts say stuff about not reading contracts so as to arrive at an illogical result. Arguably the courts would say that the second sentence of the AoI quoted is so clear that the intention of the AoI's authors was in fact to allow adjustment of the number of directors.

My vote [wink] is for the controlling line being the AoI line about the number of directors being change-able, by amendment to the Bylaws.

I see the Idaho Nonprofit Corp Act is no help at all. As interested, see the applicable section here: https://legislature.idaho.gov/statutesrules/idstat/Title30/T30CH30/SECT30-30-603/

AugustinD
Posts: 3,698

Posted:

From https://www.hoatalk.com/Forum/tabid/55/forumid/1/postid/309165/view/topic/Default.aspx, it looks like 3/4s of the owners must support an amendment to the AoI for the AoI amendment to pass. It looks like a simple majority of owners must support an amendment to the Bylaws for the Bylaw amendment to pass.

I thought any difference in the amendment requirements might strengthen my position. In this case, not so.

Still, I am going with my earlier opinion as being the appropriate interpretation. That is, assuming someone does not point out something I missed.

AdamL1 (UnitedStates)
Posts: 559

Posted:

I think we all are talking apples and oranges here. I'm not asking about the process or procedure to change the # of directors or for amending. Agreed, the 2nd sentence is clear about allowing a later change to the quantity.

I'm asking: As written currently, how many directors can I have? exactly 3 or any number >= 3.
- Articles says exactly 3
- Bylaws at least 3
--> Can I have 4 Board Members right now?

The follow up question then is about Amending. If I amend the bylaws to say something like "at least five (5)" --> How does this jive with the Articles that supercede the Bylaws?

Quote:

Posted By MichaelH34 on 01/24/2022 11:25 AM
Not sure why you're getting stuck on the first sentence. The Articles are saying that the minimum # is 3 BOD members. It says nothing about the maximum. Therefore you must have at least 3 and up to a bajillion. Or more.

The bylaws essentially say the same thing.

I'm not sure why you are advising to ignore the first sentence. Getting stuck on the sentences is literally the point of a contract. The Articles say "shall be 3" in the first sentence. Next, it then says that the number can be changed by amending the bylaws, but can never be less than 3. These are two different sentences that need to be considered.

BarbaraT1 (Texas)
Posts: 821

Posted:

But “shall be 3” and “shall be ONLY 3” are not the same thing. By providing for a means to increase the number, the implication is not ONLY 3 EVER. If it couldn’t ever be changed to more than three there wouldn’t be language specifically providing a means to change the number and specifying that it can’t be less than three.

I would interpret the language to mean that it’s 3 at time of formation and can be increased, but not decreased. But I’m not a lawyer and you should ask one.

BarbaraT1 (Texas)
Posts: 821

Posted:

Quote:

Posted By MichaelH34 on 01/24/2022 11:27 AM
Barbara, why "But since you need a lawyer to draft the bylaw amendment anyway..."

Are you speaking from experience in Texas or do you know that's also required in Idaho. I ask because I am fairly sure that's not the case in NC.

I don’t know what’s required in Idaho but I would never recommend having laypeople draft amendments to governing documents.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By AdamL1 on 01/24/2022 11:45 AM
Can I have 4 Board Members right now?

I say: The number of directors remains at three until such time as the Bylaws are amended to declare the number shall be four or more. Why? Because the AoI controls when there is a conflict between the AoI and Bylaws. As pointed out in your August, 2021 thread.

Quote:

Posted By AdamL1 on 01/24/2022 11:45 AM
The follow up question then is about Amending. If [the owners] amend the bylaws to say something like "at least five (5)" --> How does this jive with the Articles that super[s]ede the Bylaws?

The AoI say the number may be changed by amendment to the Bylaws. The Bylaws amendment "at least five (5)" jives with the AoI but still has a defect: Such an amendment would require the HOA to permit anyone running to be on the Board. Furthermore, such an amendment would permit the board to appoint as many people as it wanted to serve as directors. If this is what your owners want, okay. But I think such an approach will tend to bring chaos.

In charitable nonprofits where the Bylaws use language like "At least five shall serve on the board... ", typically the Bylaws also say that the Board, and only the Board, fills seats on the Board. There is no annual election by members.

AdamL1 (UnitedStates)
Posts: 559

Posted:

Quote:

Posted By BarbaraT1 on 01/24/2022 11:56 AM
But “shall be 3” and “shall be ONLY 3” are not the same thing.

That literally means the same thing.

Quote:

Posted By BarbaraT1 on 01/24/2022 11:56 AM
By providing for a means to increase the number, the implication is not ONLY 3 EVER. If it couldn’t ever be changed to more than three there wouldn’t be language specifically providing a means to change the number and specifying that it can’t be less than three.

I would interpret the language to mean that it’s 3 at time of formation and can be increased, but not decreased. But I’m not a lawyer and you should ask one.

I think we are not talking about the same thing. No one said anything about it not ever changing.

AdamL1 (UnitedStates)
Posts: 559

Posted:

Quote:

Posted By AugustinD on 01/24/2022 12:09 PM

Posted By AdamL1 on 01/24/2022 11:45 AM
Can I have 4 Board Members right now?

I say: The number of directors remains at three until such time as the Bylaws are amended to declare the number shall be four or more. Why? Because the AoI controls when there is a conflict between the AoI and Bylaws. As pointed out in your August, 2021 thread.

Quote:

Posted By AdamL1 on 01/24/2022 11:45 AM
The follow up question then is about Amending. If [the owners] amend the bylaws to say something like "at least five (5)" --> How does this jive with the Articles that super[s]ede the Bylaws?

The AoI say the number may be changed by amendment to the Bylaws. The Bylaws amendment "at least five (5)" jives with the AoI but still has a defect: Such an amendment would require the HOA to permit anyone running to be on the Board. Furthermore, such an amendment would permit the board to appoint as many people as it wanted to serve as directors. If this is what your owners want, okay. But I think such an approach will tend to bring chaos.

In charitable nonprofits where the Bylaws use language like "At least five shall serve on the board... ", typically the Bylaws also say that the Board, and only the Board, fills seats on the Board. There is no annual election by members.

Yea, I think I agree. So a later amendment to the Bylaws doesn't also need to join with an amendment to the Articles "shall be 3" line?

I think I follow about your 'defect' idea. as written "at least #" means any number >= 3 or 5 or whatever. I agree this is 'bad.' We are aiming to change the language to say something like "between 3 and 5" and then include voting rules about how each director needs a majority vote, not just a "i'm present and filling a seat".

BarbaraT1 (Texas)
Posts: 821

Posted:

"Shall be 3" and "Shall be no more than 3"/ "Shall be only 3" - or any other qualifier - are not the same thing.

The existence of language providing for the ability to change the number suggests the number can be changed. Why would the article specify how to change the number if the intent is that the number never be changed?

Is there a reason an attorney can't be consulted on this matter?

AdamL1 (UnitedStates)
Posts: 559

Posted:

Quote:

Posted By BarbaraT1 on 01/24/2022 12:33 PM

"Shall be 3" and "Shall be no more than 3"/ "Shall be only 3" - or any other qualifier - are not the same thing.

The existence of language providing for the ability to change the number suggests the number can be changed. Why would the article specify how to change the number if the intent is that the number never be changed?

Is there a reason an attorney can't be consulted on this matter?

Again, I really think you aren't following the conversation. No one here is saying it can't be changed. The question is what is the current allowance.

Also, you changed your quote.

Shall be 3 == shall be only 3.

Please help me understand your logic to make these terms different.

Anyway, you and I are going in circles. I'm talking about the present situation and you are talking about amendments.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By AdamL1 on 01/24/2022 12:32 PM
So a later amendment to the Bylaws doesn't also need to join with an amendment to the Articles "shall be 3" line?

Per my posts above about resolving conflicts, and in my opinion, correct. To review: IMO a later Bylaws amendment can change the number of directors. The only caveat is that Idaho's nonprofit corp statute says the number has to be at least three.

Quote:

Posted By AdamL1 on 01/24/2022 12:32 PM
I think I follow about your 'defect' idea. as written "at least #" means any number >= 3 or 5 or whatever. I agree this is 'bad.' We are aiming to change the language to say something like "between 3 and 5" and then include voting rules about how each director needs a majority vote, not just a "i'm present and filling a seat".

If the owners support a bylaw amendment that sets the number of directors at between 3 and 5, inclusive (meaning the number of directors shall be either 3, 4, or 5), then how many open spots will there be at each annual election (assuming terms are all one year)?

I think "between 3 and 5, inclusive" will work, but for a HOA, I also think setting a range is overcomplicating things. If

-- the owners vote to amend the Bylaws to require exactly five directors,

-- currently five are serving as directors,

-- the terms remain at one year,

-- only three people are willing to run at the annual election,

then two directors will continue until such time as they resign. And resigning is no big deal. Then the remaining directors can try to find appointees to fill any empty seats. If the directors cannot find anyone willing and qualified to be appointed, then the Board continues but with unfilled seats. It happens all the time. Yes its better to have all seats filled, but a judge is not going to, say, terminate the HOA or the corporation, or god forbid appoint a receiver, just because all seats cannot be filled.

As another example, suppose the owners amend the bylaws to specify "between 3 and five, inclusive," and only one person, who by all appearances is competent, is willing to serve on the Board. This is not the greatest situation, but it's better than no one being willing and a judge having to appoint a receiver.

In short, I think owners will be more confused by setting a range of "3 to 5, inclusive." If you folks would really like five on the board, then just set the Bylaws amendment to specify exactly five. If all five seats are filled each year, great. If not, no biggie. Happens all the time.

AdamL1 (UnitedStates)
Posts: 559

Posted:

I'm not sure I follow your what-if example completely.

- requires exactly 5 directors.
- only 3 ppl run (are these incumbents or fresh nominees?)
--> how to decide which 2 previous directors 'stay on' to fill the 5 seat requirement?

seems that only the 3 newly elected directors are on the new board, and they then have the authority to appoint 2 more seats.

It seems that 'continues but with unfilled seats' is asking for trouble. seems decisions could be called into question if the requirement is for exactly 5 but only 3 were on the board.

Why allow this type of conflict? I think a 3-to-5 range seems to cover all bases.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By AdamL1 on 01/24/2022 1:00 PM
I'm not sure I follow your what-if example completely.

- requires exactly 5 directors.
- only 3 ppl run (are these incumbents or fresh nominees?)
--> how to decide which 2 previous directors 'stay on' to fill the 5 seat requirement?

seems that only the 3 newly elected directors are on the new board, and they then have the authority to appoint 2 more seats.

Directors will need to be held to their commitment, made in advance of the meeting notice, to step down or run. Flip-flopping is not allowed. Such is the reasonable rule I recommend the Board adopt.

Quote:

Posted By AdamL1 on 01/24/2022 1:00 PM
I It seems that 'continues but with unfilled seats' is asking for trouble. seems decisions could be called into question if the requirement is for exactly 5 but only 3 were on the board.

Why allow this type of conflict? I think a 3-to-5 range seems to cover all bases.

So in the notice for each annual election, the HOA would advertise that five seats are open? Or it would say, "up to five seats are open"? Or it would say, "three to fives seats are open"?

It could work. I just think setting a range adds to the confusion.

As for calling decisions by a three-director board into question when five directors are 'required': The three director Board demonstrates it tried to fill all five seats and could not.

Maybe it's a 'five-will-get-you-ten' call.

KerryL1 (California)
Posts: 14,550

Posted:

To answer what seems to be your question, Adam, your AOI clearly states that you may have any number more than three IF permitted by the Bylaws.

To answer your question if you may have 4 directors NOW? No. You need to amend the Bylaws first.

So I agree with Barbara, Michel & Augustin.

AdamL1 (UnitedStates)
Posts: 559

Posted:

Quote:

Posted By KerryL1 on 01/24/2022 1:31 PM
To answer what seems to be your question, Adam, your AOI clearly states that you may have any number more than three IF permitted by the Bylaws.

To answer your question if you may have 4 directors NOW? No. You need to amend the Bylaws first.

So I agree with Barbara, Michel & Augustin.

So i think we still are not fully aligned.

- You say that the AOI defer to the bylaws
- The bylaws currently say "at least three (3)"
- 4 directors satisfies "at least three (3)"
- you say that 4 directors is not allowed.

So which is it? Does the AoI control or the Bylaws control? Can 4 people be on the board right now? You said yes and no.

This is the question that I was asking, which is seems only Augustin seems to be in tune with.

It still seems to me that the AoI would need to be amended as well to remove that pesky "shall be 3" line if you want more than 3.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Adam

Why the confusion?

Your AofI say: Shall be managed by a BOD of 3 and can be changed by amendment to the Bylaws but never less then 3/

Your Bylaws say managed be at least 3.

Can you have a BOD of more then 3 as it now stands. I say no. If the Bylaw is changed you could have a BOD of larger then 3 but until then you can only have a BOD of 3.

SheliaH (Indiana)
Posts: 6,964

Posted:

Usually, the articles of incorporation supersede the bylaws, but because they establish the corporation (non-profit in the case of a HOA),they typically address things like the company name, principal address, name and address of the registered agents, etc. Non-profit corporations may have a few additional requirements depending on how the law is written in your state.

One of the sources I looked at noted the articles provide the general outline for the organization or business, but the bylaws fill in the details so the people running it understand what they want the organization to do and how to do it. It also said as the organization grows, original plans may not work anymore, and so it may be necessary to adjust the articles of incorporation or the bylaws. This way, the association doesn’t do anything that’s against the articles and you already know it has to run according to the Bylaws and CCRs. This is also why associations should review their documents every 5-7 years to catch stuff like this.

In this case, you said your articles say exactly three directors, whereas the bylaws said at least three. It’s possible whoever wrote this was thinking at least three, but because it’s not written that way, you’ll have to amend the articles of incorporation. That may be all you need to do – if it says something like “no less than three” and the bylaws say at least three, you should be able to add or subtract numbers as necessary.

Stop overthinking this – if you and a majority of your neighbors want more people on the board (5, 7 9, whatever), the attorney should review the documents, prepare the appropriate paperwork, and if a vote is necessary, the homeowners can do that and the paperwork filed with the secretary of state’s office.

All of that said, I think what Augustin and Barbara said was reasonable – I would have said the same thing, but you kept talking about the articles of incorporation, so I did some Googling and several sources said the same thing (you could have done that and saved yourself some time and drama). But if you want a precise answer, get your own attorney or review YOUR STATE LAW on the subject (the secretary of state’s office won’t be able to give you legal advice on this either).

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

AdamL1 (UnitedStates)
Posts: 559

Posted:

Quote:

Posted By JohnC46 on 01/24/2022 1:49 PM
Adam

Why the confusion?

Your AofI say: Shall be managed by a BOD of 3 and can be changed by amendment to the Bylaws but never less then 3/

Your Bylaws say managed be at least 3.

Can you have a BOD of more then 3 as it now stands. I say no. If the Bylaw is changed you could have a BOD of larger then 3 but until then you can only have a BOD of 3.

I think the confusion is a few things.

First confusion: most of the other commenters here are saying internally conflicting opinions or keep focusing on amending, rather than the question of how many currently.

Second confusion: is that the Bylaws also currently state "at least 3", which means 3 or more.

Third confusion: even if the Bylaws are later amending to say "at least 4" or "shall be 5" or whatever, there still appears to be conflict with the AOI. It seems the the AOI would also need editing as well...

AdamL1 (UnitedStates)
Posts: 559

Posted:

Quote:

Posted By SheliaH on 01/24/2022 1:57 PM
Usually, the articles of incorporation supersede the bylaws, but because they establish the corporation (non-profit in the case of a HOA),they typically address things like the company name, principal address, name and address of the registered agents, etc. Non-profit corporations may have a few additional requirements depending on how the law is written in your state.

One of the sources I looked at noted the articles provide the general outline for the organization or business, but the bylaws fill in the details so the people running it understand what they want the organization to do and how to do it. It also said as the organization grows, original plans may not work anymore, and so it may be necessary to adjust the articles of incorporation or the bylaws. This way, the association doesn’t do anything that’s against the articles and you already know it has to run according to the Bylaws and CCRs. This is also why associations should review their documents every 5-7 years to catch stuff like this.

In this case, you said your articles say exactly three directors, whereas the bylaws said at least three. It’s possible whoever wrote this was thinking at least three, but because it’s not written that way, you’ll have to amend the articles of incorporation. That may be all you need to do – if it says something like “no less than three” and the bylaws say at least three, you should be able to add or subtract numbers as necessary.

Stop overthinking this – if you and a majority of your neighbors want more people on the board (5, 7 9, whatever), the attorney should review the documents, prepare the appropriate paperwork, and if a vote is necessary, the homeowners can do that and the paperwork filed with the secretary of state’s office.

All of that said, I think what Augustin and Barbara said was reasonable – I would have said the same thing, but you kept talking about the articles of incorporation, so I did some Googling and several sources said the same thing (you could have done that and saved yourself some time and drama). But if you want a precise answer, get your own attorney or review YOUR STATE LAW on the subject (the secretary of state’s office won’t be able to give you legal advice on this either).

this is the best response so far.

the devil is in the details.

AdamL1 (UnitedStates)
Posts: 559

Posted:

Quote:

Posted By SheliaH on 01/24/2022 1:57 PM
Usually, the articles of incorporation supersede the bylaws, but because they establish the corporation (non-profit in the case of a HOA),they typically address things like the company name, principal address, name and address of the registered agents, etc. Non-profit corporations may have a few additional requirements depending on how the law is written in your state.

One of the sources I looked at noted the articles provide the general outline for the organization or business, but the bylaws fill in the details so the people running it understand what they want the organization to do and how to do it. It also said as the organization grows, original plans may not work anymore, and so it may be necessary to adjust the articles of incorporation or the bylaws. This way, the association doesn’t do anything that’s against the articles and you already know it has to run according to the Bylaws and CCRs. This is also why associations should review their documents every 5-7 years to catch stuff like this.

In this case, you said your articles say exactly three directors, whereas the bylaws said at least three. It’s possible whoever wrote this was thinking at least three, but because it’s not written that way, you’ll have to amend the articles of incorporation. That may be all you need to do – if it says something like “no less than three” and the bylaws say at least three, you should be able to add or subtract numbers as necessary.

Stop overthinking this – if you and a majority of your neighbors want more people on the board (5, 7 9, whatever), the attorney should review the documents, prepare the appropriate paperwork, and if a vote is necessary, the homeowners can do that and the paperwork filed with the secretary of state’s office.

All of that said, I think what Augustin and Barbara said was reasonable – I would have said the same thing, but you kept talking about the articles of incorporation, so I did some Googling and several sources said the same thing (you could have done that and saved yourself some time and drama). But if you want a precise answer, get your own attorney or review YOUR STATE LAW on the subject (the secretary of state’s office won’t be able to give you legal advice on this either).

this is the best response so far.

the devil is in the details.

BenA2 (Texas)
Posts: 1,273

Posted:

The Articles only supersede the bylaws if there is a conflict between the two. Since the Articles give authority to change the number of directors by amending the bylaws, then there is no conflict.

Your Articles state that an amendment to the bylaws can allow more than three directors so the bylaws carry.

AdamL1 (UnitedStates)
Posts: 559

Posted:

Quote:

Posted By BenA2 on 01/24/2022 3:32 PM
The Articles only supersede the bylaws if there is a conflict between the two. Since the Articles give authority to change the number of directors by amending the bylaws, then there is no conflict.

Your Articles state that an amendment to the bylaws can allow more than three directors so the bylaws carry.

OK, I think we still aren't talking on the same wavelength here. There is a conflict.

- AOI say exactly 3
- Bylaws say 3 or more.

There is no amendment yet. As it reads currently with no amendment to the bylaws, tell me, can there be 4 directors?

The whole amendment thing is a red herring that you and most others here still are getting stuck on. Th amendment conversation is a separate and independent issue. Within this topic, it seems the AOI need to be edited as well to remove that "shall be three" line as well.

Sheila's response seems like the best, actually understanding the problem statement.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By SheliaH on 01/24/2022 1:57 PM
Usually, the articles of incorporation supersede the bylaws

When conflicts arise the Articles always supersede the Bylaws. In particular for Idaho from the state's Nonprofit Corporation Act:

"30-30-206. BYLAWS. (1) The board of directors or members of a corporation shall adopt the initial bylaws for the corporation.
...
(2) The bylaws may contain any provision for regulating and managing the affairs of the corporation that is not inconsistent with law or the articles of incorporation.
...

30-30-302. GENERAL POWERS. Unless its articles of incorporation provide otherwise, every corporation has perpetual duration and succession in its corporate name and has the same powers as an individual to do all things necessary or convenient to carry out its affairs including, without limitation, power:
...
(3) To make and amend bylaws not inconsistent with its articles of incorporation or with the laws of this state, for regulating and managing the affairs of the corporation;"

KerryL1 (California)
Posts: 14,550

Posted:

Agree with Ben. There is NO conflict.

AdamL1 (UnitedStates)
Posts: 559

Posted:

Quote:

Posted By KerryL1 on 01/24/2022 4:38 PM
Agree with Ben. There is NO conflict.

help me understand how there is no conflict?

AOI says exactly 3
Bylaws says 3+

Can there be 4?

SheliaH (Indiana)
Posts: 6,964

Posted:

Ok, we can go round and round on this, so what are you really concerned about? Is the board talking about adding more members - or is trying to stop it, less they lose power? Do you and your neighbors want more board members? I understand wanting a few more people because if there are only 3, it can be difficult to get things done if one person has a bad habit of showing up every other month and another always shows up late and unprepared. It can cause problems with making quorum and/ getting association business addressed in a timely manner.

It seems to me you've answered your own question about your documents, but I also wonder if you're trying to find a way around the articles of incorporation. Sorry, but they say what they say, so if you want them to line up, you have no choice but to amend the articles, or the bylaws, or perhaps both. That will definitely mean homeowner approval for the bylaws. I'm not sure about the articles, but even if homeowner approval isn't necessary, I'd still want to at least poll the homeowners so they understand what's happening and why.

Once again, stop over thinking this - you'll give yourself a headache. You either get your own legal opinion and bring that to the board or talk to your neighbors about pushing for the change. Then you can increase the number to however many the homeowners feels is necessary to run the community effectively.

But be careful what you wish for - You may get it. If your community decides to have, say, 7 board members and the newbies still won't allow you to have your beehive (no, I haven't forgotten that) and don't care about much else, then what's the point?

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

KerryL1 (California)
Posts: 14,550

Posted:

AOI
"The affairs of this Corporation shall be managed by a Board of three (3) ...The number of Directors
may be changed by amendment of the Bylaws of the Corporation..."

Adam, your AOI gives permission to increase from three to more by way of amending the Bylaws. Until the Bylaws are amended, no, you may not have 4 directors.

Btw, you have a master association, I think. Do its documents offer any help?

I always appreciate Shelia's thorough discussions. I (easily) remember the bees too.

AdamL1 (UnitedStates)
Posts: 559

Posted:

@Sheila. I'm not trying to find a way around anything. As with all my posts, I'm an staunch advocate of adherence to the governing documents. Unfortunately, there are plenty of people that would rather rely on feelings, tradition, and incompetent readings.

In my situation, I'm the Pres of the local, trying to deal w/ a fatally flawed amendment to bylaws that made it 5-7 Directors among other odd changes. Historically, they've always had 5+ Directors, even before this Resolution. All I'm doing is reading the documents and trying to make sure we are following the contract we all signed. I'm trying to salvage and rewrite this amendment and making sure I understand what needs to be amended to fix it so there's no more confusion. The local is all gravy, no drama, but no one really knows anything about anything.

The Master is a whole other can of worms. I previously started asking questions about the qty of board seats because the docs say the same thing (3 in AOI, 3+ in Bylaws), yet they've had 5+ every year, even so much as 11 one year. After it was clear I and several other young new homeowners were running for the board, the old-timers very quickly changed their tune and said "only 3 directors allowed" and fixed the elections. That's a whole other situation.

Regarding the bees, let's stay on topic. That's a separate issue and not relevant here. More details to come in a separate dedicated post when the time comes.

BenA2 (Texas)
Posts: 1,273

Posted:

Quote:

Posted By AdamL1 on 01/24/2022 3:58 PM

Posted By BenA2 on 01/24/2022 3:32 PM
The Articles only supersede the bylaws if there is a conflict between the two. Since the Articles give authority to change the number of directors by amending the bylaws, then there is no conflict.

Your Articles state that an amendment to the bylaws can allow more than three directors so the bylaws carry.

OK, I think we still aren't talking on the same wavelength here. There is a conflict.

- AOI say exactly 3
- Bylaws say 3 or more.

There is no amendment yet. As it reads currently with no amendment to the bylaws, tell me, can there be 4 directors?

The whole amendment thing is a red herring that you and most others here still are getting stuck on. Th amendment conversation is a separate and independent issue. Within this topic, it seems the AOI need to be edited as well to remove that "shall be three" line as well.

Sheila's response seems like the best, actually understanding the problem statement.

I think I assumed that the bylaws had been amended since they stated a different number of directors. So, technically, the Articles prevail but the argument could be made that the intent of the Articles was clearly to defer to the bylaws.

The easy solution is to amend the bylaws and the problem is solved. Otherwise, I would consult an attorney.