Upcoming annual meeting....no draft amendment, no nominations

What to do if we've got an upcoming Annual Meeting and the HOA board has refused to provide a draft of a proposed bylaws amendment and has not solicited or announced any details about elections?

I would have thought that a hard copy "locked in" draft of the proposed amendment would need to be mailed out 10days minimum for consideration.

I would think that most normal HOA's provide details about nominations, procedure, elections, etc.

Any advice?

Many/most bylaws or state statutes require proper notice for the annual meeting - often in writing and sent out a month or so prior (details may vary in your community). Failing to do this can invalidate whatever occurs at the meeting, although it will take legal action to make this happen.

How much time do you have? If the meeting is later this week, then you don't have enough time. But if it's next month you can ask questions - ie., I haven't received anything about the annual meeting, did it get lost in the mail and can I get another copy?

If the meeting is soon, I'd plan to show up and ask pointed questions.

In my opinion the amendment is the bigger issue because of the higher bar for correcting mistakes. People need time to think about it. When we amended our CC&Rs, we sent out the text of the amendment, a "plain English" version of it, and a Q&A answering the most likely questions to be asked. And our voting didn't take place during a meeting, it was open voting until an amendment either passed or was defeated. (I prefer this because every homeowner received the voting materials and we had a high level of response - the fate of the amendment wasn't decided by whoever showed up at a meeting.)

I think this is only for amending the Articles of Incorporation. The difference is important.

Reference thread discussing the bylaws and Articles in question here:

https://www.hoatalk.com/Forum/tabid/55/forumid/1/postid/309165/view/topic/Default.aspx

Adam

What do your Bylaws say about notice, elections, etc? What we think does not mean we are right. Read your Bylaws.

Good call back. Yes, my HOA is back on that topic of
- Articles says exactly 3
- Bylaws says more than 3
- previously we restricted to only 3 because of this.
- now we are amending the bylaws but not the Articles and we can have more than 3.

Sigh. We've discussed this thoroughly here on HOATalk...
the articles say exactly 3, then it doesn't matter what the Bylaws say....

Agreed.....OK, so assuming the presented amendment at the meeting is the same as what's mailed out (physically), can edits then be made at the meeting to the proposed amendment before voting? IE, can members vote to restructure or re-word the draft minutes before voting?

Following up this topic,

I request the Board to mail out the actual Restated Bylaws, instead, they replied back that they have no requirement to send out the actual Bylaws draft, and all they need to do is list a 3-bullet-point summary of the "major" changes. Of course, 3 bullet summary doesn't address nearly any of the significant changes listed in the Restated Bylaws proposal.

What are your thoughts? Is this legal/valid? As of now, no body know what the current version of the Bylaws are, it was emailed a few weeks ago, but there's definitely been more changes and edits.

I'm trying to make sure I understand the state law requirements. From what I can tell, only 30-30-709 is involved.
https://legislature.idaho.gov/statutesrules/idstat/Title30/T30CH30PT7/
https://legislature.idaho.gov/statutesrules/idstat/Title30/T30CH30/SECT30-30-709/
(3) If the board or the members seek to have the amendment approved by the members at a membership meeting, the corporation shall give notice to its members of the proposed membership meeting in writing in accordance with section 30-30-505, Idaho Code. The notice must also state that the purpose, or one (1) of the purposes, of the meeting is to consider the proposed amendment and contain or be accompanied by a copy or summary of the amendment.
(4) If the board or the members seek to have the amendment approved by the members by written consent or written ballot or absentee ballot, the material soliciting the approval shall contain or be accompanied by a copy or summary of the amendment.

I think you really are missing the point of the post and conversation. Its about working through the legality of presenting and noticing a big amendment/restatement, not me asking if you if you think I should vote for them.....

For example, is restatement the same as amending? Is a bullet point summary sufficient for a total re-write, etc.

I expect my thoughts are probably the same as yours. Here is my elaboration.

Per Idaho statutes 30-30-509 (3), I see now that the notice need only include a summary of the proposed bylaw amendment. Idaho statutes 30-30-509 (4) even permits owners' votes to be solicited on the basis of a mere "summary." The statutes do not require that the HOA present the text of the proposed amendment to the owners.

Whether the "summary" the board presented in the notice is a bona fide summary would be up to a court. If there's any room to dispute that the "summary" sent out in the notice failed to address certain parts of the amendment, then I think a judge would be annoyed and rule against the HOA. This is after everyone has spent thousands of dollars on attorneys, of course.

If push came to shove and someone wanted to litigate the passage of an amendment for the aforementioned reason, then I see an exchange like the following happening early on:

Judge:
What's going on here?

Plaintiffs'/Owners' Attorney:
Your Honor, my client alleges the HOA violated its bylaws and state law when it completed a vote on an amendment to the bylaws. My client contends the vpte, and so the amendment is invalid.

Judge:
Why?

Plaintiffs'/Owners' Attorney:
Your Honor, Bylaws Article 7 states in part, "No amendment to these Bylaws shall take effect unless approved by at least a Majority of Members or such percentage as herein otherwise provided." The HOA did not present the amendment to the Bylaws to the Members. The HOA presented only a summary of the amendment.

Judge:
The corporation held a vote on an amendment without telling the Members what the amendment was? Defendant-HOA, what's going on here?

Defendant/HOA Attorney:
Idaho statutes section 30-30-709 (4) and (4) state that the HOA may present a mere summary of the proposed amendment. This is exactly what the HOA did.

Judge:
Plaintiff/Owners' Attorney, is this correct?

Plaintiffs'/Owners' Attorney:
It is incomplete, your honor. Idaho statutes section 30-30-709 (1) states that "(1) Unless the articles or bylaws provide otherwise, an amendment to a corporation’s bylaws to be adopted must be approved:
(a) By a simple majority of the board;
(b) By the members by a simple majority of the votes cast or a majority of the voting power, whichever is less; and... "
In other words, your honor, I think the statute and the bylaws both require that members approve the amendment, and not a mere summary. At some point prior to the owners' vote, the HOA must present the "amendment" to the owners. If the HOA does not present the "amendment" to the owners, then the owners are merely approving a summary. Yet the Bylaws and the statute section say the owners are to approve the "amendment."

Judge:
Defendant/HOA Attorney, what do you say to this?

Defendant/HOA Attorney:
Your honor, statute sections 30-30-709 (3) and (4) speak as well of approval of the amendment, but again, via presenting merely a summary of the amendment. It seems to me the point of the statute section is to acknowledge the difficulty of getting bylaws amended. Owners tend not to read a lot of text. When owners have only a summary, they are more likely to vote.

Plaintiff/Owners' attorney:
That's if they have a real summary of the amendment. Your honor, the owners did not have a legitimate summary of the amendment.

I hope all agree that the owners have to approve the "amendment." I think justice yada requires that the "summary" reflect what the proposed amendment actually says.

Judge:
That the summary reflect the proposed amendment seems reasonable. Is there a dispute about whether the summary does this?

Plaintiff/Owners' attorney and HOA Attorney both say yes.

Judge:
And do you both agree that if you two can present your arguments about whether the summary accurately reflects the proposed amendment, and I rule on this, then this will lay to rest all disputes here, unless one of you wants to appeal?

Both attorneys agree. Though the Plaintiffs'/Owners' attorney adds:

Plaintiffs'/owners' attorney:
If I may your honor, to tie up a loose thread, I want to be clear about the seriousness of complying with the bylaws here: Actions taken in violation of a corporation’s bylaws are void. I have the case law that declares this. [Twin Lakes Vill. Prop. Ass’n, Inc., 124 Idaho at 136, 857 P.2d at 615]

Judge:
This seems obvious. Do you agree, Defendant HOA attorney?

Defendant/HOA Attorney:
I do. But my client violated neither the bylaws nor state statutes.

Judge:
Very well. Please provide me your briefs of why the summary does or does not reflect the proposed amendment. But Defendant HOA attorney, one more thing: I understand the difficulty of passing amendments, and the need to use concise language in making one's case for an amendment. But as you know, this practice, of only presenting a summary, makes the process vulnerable to abuse. The HOA could have saved itself a lot of time if it had simply attached both the summary and the full amendment to the owners. Now here we are in court.

I want to encourage both sides here to settle this and agree to re-run the vote. [Looks at audience in the gallery.] I am sure these folks here do not appreciate paying all these attorney fees. Just having a second vote would save a lot of money, both theirs and the taxpayers'. Don't you agree?

i found this in Robert's Rules.

"Unless the rules require the full text of the motion, resolution, or bylaw amendment to be submitted in the notice, only the purport need be indicated; but such a statement of purport must be accurate and complete—as in “to raise the annual dues to $20”—since it will determine what amendments are in order when the motion is considered." RONR (12th ed.) 10:47

does an incomplete summary fail the test?

-- Regarding folks being able to propose amendments, in my I-want-to-get-it-right-(dammit)-way, I think this is a helluva point. The summary better have enough specifics such that people can motion appropriately to change the substance.

-- I am not quite convinced that the bylaw and statute section that speak of "approving" the "amendment" translate to the HOA not having to present to the owners the full text. Granted if the summary reasonably reflects the amendment, then a judge would rightly tell me to go fly a kite and quit wasting everyone's time. Robert's Rules seem to support presenting only a summary, if state law and/or the bylaws permit only presenting a summary.

-- AFAIC, "purport" roughly means "summary."

-- Note for those new to AdamL1's HOA: The Bylaws require the use of Robert's Rules. And yes, interpretation of Robert's Rules has made it into case law for the purposes of settling certain disputes where the Bylaws yada require RONR.

-- This really sucks eggs when the board will not simply give you a copy of the full amendment/restatement. I would not trust these birds. The President seems illiterate. If you can hire an attorney to make a demand for the full amendment/restatement, I think it might be worth it.

This has been an eye-opening discussion, that's for sure.

I'd be unpleasantly surprised if my state's laws did not require the full text of an amendment to be provided. After all, a summary of the CC&Rs is not adequate disclosure when we buy our homes, and an amendment becomes part of the CC&Rs. The law is not consistent, and it becomes worse the more extensive the amendments are. If the state law truly allows summaries only, I'd think it would be ripe for a legal challenge.
MMMMMHHH
It can be tricky to read legalese, and we often get into the weeds around here. In addition to punctuation surprises, there can be phrases such as "unless specified otherwise elsewhere" which means you need to read the entire text verbatim. My rule of thumb is "don't read anything into CC&Rs that isn't there, and don't leave anything out.

My question is why the board would *not* provide the full text. Printing costs? Fear that the homeowners would misinterpret some of it? (This could probably be avoided by including a "plain English" version of the amendment, which is what we did when amending our CC&Rs.) This would be an appropriate question to ask at the meeting, if you can - you may get enough others to agree that they don't have enough information.

If you can't get anywhere, the safest thing to do is to vote No. The board can always try again but it's hard to undo what's been done.

For the record, Idaho has no case law on this "summary" aspect under discussion here. Like five cases total address bylaw amendments.

Adam,

Whether you're in Idaho or anywhere, it sounds like your Board may have failed the test of reasonableness and certainly failed the test of transparency. Reasonable decision-making is the hallmark of fulfilling one's duty of care. The application of lacking guardrails in the form of vague statutes and/or governing documents to justify exclusionary processes and lack of transparency is not reasonable. There are myriad examples of reasonable communication processes for governing document amendments, restatements, notice annual meetings, etc. While this is not specifically a formal disclosure, it sounds like a lesson re: disclosure best practices might be appropriate (https://www.(LINK-NOT-ALLOWED-PER-POSTING-RULES)/governance/disclosure).

I would also point you toward Idaho's Condominium Property Act (https://legislature.idaho.gov/wp-content/uploads/statutesrules/idstat/Title55/T55CH15.pdf) which unfortunately has little concrete material governing meetings. CIC statutes generally trump similar provisions for nonprofit corporations.

Regards,
Steve

To me, only the "3rd" seems like a big enough problem over which to make a fuss.