Is there anything illegal or invalid about Bylaws, themselves, requiring a membership vote to amend them

RogerJ1 (Texas)
Posts: 550

Posted:

Can Bylaws, (please note, I am not asking about restrictions or CCRs - only Bylaws in this question), contain language requiring membership vote for amendments to those Bylaws?

Some are arguing that since the law does not address it for Bylaws, as it does for Restrictions/CCRs (again, I am not ask about them - only Bylaws), it cannot be done. That seems a silly argument since law is generally prohibitive in nature, not affirmative, so it not going to list the multitude of things that are legal.

So the overall question to this forum, is the following language legal, or would it be illegal and therefore unenforceable, if it is part of a POA's Bylaws (again, not CCRs - Bylaws only for this question please)

Section 6. Amendment.

These Bylaws may be amended or repealed and new bylaws may be made (i) by the affirmative vote of a majority of the Board at a meeting of the Board called for that purpose at which a quorum is present, or (ii) by the affirmative majority vote of Members at any annual meeting or special meeting of Members. Notice of a proposal to amend the Bylaws, together with the identity of the section of the Bylaws to be amended and the wording of the proposed amendment must be included with the notice of the meeting to be sent to the Members. The provisions of this Section 6 may not be amended without the prior approval of the majority vote of Members.

ElleN (Idaho)
Posts: 4,420

Posted:

Your statutes 209 and 22 place some restrictions on amendments to the bylaws but don't prescribe details of a procedure for amending. Your bylaw section 6 is typical and is to be complied with by the board and members alike. Yes, the some who say section 6 doesn't apply are being silly.

WendyM5 (North Carolina)
Posts: 1,522

Posted:

doesnt' pass my smell test.

vis ta vie

KerryL1 (California)
Posts: 14,550

Posted:

The Bylaws language is very clear, Roger. The Board or the owners may amend the Bylaws following specific procedures.

Only Owners may amend Bylaws in CA.

RogerJ1 (Texas)
Posts: 550

Posted:

Quote:

Posted By ElleN on 12/09/2022 7:14 AM
Yes, the some who say section 6 doesn't apply are being silly.

More and more, I am starting to think a large turnip truck drove through our subdivision, a few years ago, with some of the new residents having fallen off it.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Roger

Sometimes you have to break things down such as:

These Bylaws may be amended or repealed and new bylaws may be made

(i) by the affirmative vote of a majority of the Board at a meeting of the Board called for that purpose at which a quorum is present, or

(ii) by the affirmative majority vote of Members at any annual meeting or special meeting of Members. Notice of a proposal to amend the Bylaws, together with the identity of the section of the Bylaws to be amended and the wording of the proposed amendment must be included with the notice of the meeting to be sent to the Members.

The provisions of this Section 6 may not be amended without the prior approval of the majority vote of Members.

Note (ii) says an affirmative vote of members a the meeting. It does not say by an affirmative vote of all members. I do nto know what the rference to Section 6 is.

JohnC73 (Massachusetts)
Posts: 344

Posted:

In NH the by-law voting requirement are defined in the NH Condo Act which we recently started to follow at our HOA. We can only have additional requirements on by-law changes in our by-laws if they make the NH Condo Act requirement MORE restrictive.

So, the NH Condo Act requires 2/3 vote of the ENTIRE association to pass a by-law. Fat chance anything will ever pass unless we moving into the 21st century and implement some sort election reform to make it easier for remote owners to vote. Our HOA is seasonal and we have only about 1/4 of the owners attend the annual meeting where the vote takes place. We also have another 20% of the vote by General proxy.

KerryL1 (California)
Posts: 14,550

Posted:

"i" says, JohnC, that a majority of the board may amend them.

MaxB4
Posts: 3,513

Posted:

The way I read it is the Board can amend or repeal the Bylaws on their own and if the owners don't like what the board did, they can amend or repeal per the requirements of a majority of members at annual or special meeting.

Then Section 6 can only be amended by the members.

This sounds like Texas, like carrying your AR-15 strapped to your chest while having dinner with your spouse on date night.

KerryL1 (California)
Posts: 14,550

Posted:

Jeez, I thought I only was bad at math & typing: Looks like my reading skills are decreasing. Missed the last sentence of Section 6!: " The provisions of this Section 6 may not be amended without the prior approval of the majority vote of Members."

What, Roger, ARE the provisions of Section 6? These "provisions" seem to be the only items that the board may not amend without Owner approval.

Out of curiosity, is a Section, say 6, in your Bylaws part of an Article? If so, please tell us the name of the Article.

DavidG45 (Delaware)
Posts: 994

Posted:

Quote:

Posted By KerryL1 on 12/09/2022 5:35 PM
Jeez, I thought I only was bad at math & typing: Looks like my reading skills are decreasing. Missed the last sentence of Section 6!: " The provisions of this Section 6 may not be amended without the prior approval of the majority vote of Members."

What, Roger, ARE the provisions of Section 6? These "provisions" seem to be the only items that the board may not amend without Owner approval.

Out of curiosity, is a Section, say 6, in your Bylaws part of an Article? If so, please tell us the name of the Article.

Section 6 explains that amendments may be made by the board or by a majority of all lot owners. Then it notes that this requirement can only be amended by the lot owners. So, for instance, the board cannot amend Section 6 itself by, say, removing the ability of lot owners to amend it.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By KerryL1 on 12/09/2022 2:12 PM
"i" says, JohnC, that a majority of the board may amend them.

I understand that. It is obvious. Myself, I do not like the BOD alone being able to make Bylaw changes.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By KerryL1 on 12/09/2022 2:12 PM
"i" says, JohnC, that a majority of the board may amend them.

I understand that. It is obvious. Myself, I do not like the BOD alone being able to make Bylaw changes.

RogerJ1 (Texas)
Posts: 550

Posted:

Quote:

Posted By JohnC46 on 12/09/2022 1:35 PM
Roger

Sometimes you have to break things down such as:

These Bylaws may be amended or repealed and new bylaws may be made

(i) by the affirmative vote of a majority of the Board at a meeting of the Board called for that purpose at which a quorum is present, or

(ii) by the affirmative majority vote of Members at any annual meeting or special meeting of Members. Notice of a proposal to amend the Bylaws, together with the identity of the section of the Bylaws to be amended and the wording of the proposed amendment must be included with the notice of the meeting to be sent to the Members.

The provisions of this Section 6 may not be amended without the prior approval of the majority vote of Members.

Note (ii) says an affirmative vote of members a the meeting. It does not say by an affirmative vote of all members. I do nto know what the rference to Section 6 is.

Yes it is poorly written. I think (i) would allow the Board, by itself, to amend them, except they could not remove Section 6 themselves. So this particular example is not apt.

The overall argument is a number of people, including Board members, keep saying it is illegal to contractually require a membership vote to change Bylaws. They argue all of Section 6 is moot. They argue that because the state law does not require membership vote for Bylaw amendments, in our state as it does for Restrictions, then it is illegal to add such a clause to Bylaws.

That seems silly to me because generally, laws are prohibitive not affirmative in what you can do - affirmative laws would be endless.

RogerJ1 (Texas)
Posts: 550

Posted:

Quote:

Out of curiosity, is a Section, say 6, in your Bylaws part of an Article? If so, please tell us the name of the Article.

It is the very last thing in the Bylaws, under "ARTICLE VI, Miscellaneous"

DavidG45 (Delaware)
Posts: 994

Posted:

Quote:

Posted By RogerJ1 on 12/10/2022 7:28 AM

Posted By JohnC46 on 12/09/2022 1:35 PM
Roger

Sometimes you have to break things down such as:

These Bylaws may be amended or repealed and new bylaws may be made

(i) by the affirmative vote of a majority of the Board at a meeting of the Board called for that purpose at which a quorum is present, or

(ii) by the affirmative majority vote of Members at any annual meeting or special meeting of Members. Notice of a proposal to amend the Bylaws, together with the identity of the section of the Bylaws to be amended and the wording of the proposed amendment must be included with the notice of the meeting to be sent to the Members.

The provisions of this Section 6 may not be amended without the prior approval of the majority vote of Members.

Note (ii) says an affirmative vote of members a the meeting. It does not say by an affirmative vote of all members. I do nto know what the rference to Section 6 is.

Yes it is poorly written. I think (i) would allow the Board, by itself, to amend them, except they could not remove Section 6 themselves. So this particular example is not apt.

The overall argument is a number of people, including Board members, keep saying it is illegal to contractually require a membership vote to change Bylaws. They argue all of Section 6 is moot. They argue that because the state law does not require membership vote for Bylaw amendments, in our state as it does for Restrictions, then it is illegal to add such a clause to Bylaws.

That seems silly to me because generally, laws are prohibitive not affirmative in what you can do - affirmative laws would be endless.

Those people are wrong. Does the board not have an attorney to whom they can turn for clarification? Certainly they can understand that a bunch of lay people arguing about a legal matter is a fruitless pursuit.

RogerJ1 (Texas)
Posts: 550

Posted:

Quote:

Posted By DavidG45 on 12/10/2022 7:33 AM

Posted By RogerJ1 on 12/10/2022 7:28 AM

Posted By JohnC46 on 12/09/2022 1:35 PM
Roger

Sometimes you have to break things down such as:

These Bylaws may be amended or repealed and new bylaws may be made

(i) by the affirmative vote of a majority of the Board at a meeting of the Board called for that purpose at which a quorum is present, or

(ii) by the affirmative majority vote of Members at any annual meeting or special meeting of Members. Notice of a proposal to amend the Bylaws, together with the identity of the section of the Bylaws to be amended and the wording of the proposed amendment must be included with the notice of the meeting to be sent to the Members.

The provisions of this Section 6 may not be amended without the prior approval of the majority vote of Members.

Note (ii) says an affirmative vote of members a the meeting. It does not say by an affirmative vote of all members. I do nto know what the rference to Section 6 is.

Yes it is poorly written. I think (i) would allow the Board, by itself, to amend them, except they could not remove Section 6 themselves. So this particular example is not apt.

The overall argument is a number of people, including Board members, keep saying it is illegal to contractually require a membership vote to change Bylaws. They argue all of Section 6 is moot. They argue that because the state law does not require membership vote for Bylaw amendments, in our state as it does for Restrictions, then it is illegal to add such a clause to Bylaws.

That seems silly to me because generally, laws are prohibitive not affirmative in what you can do - affirmative laws would be endless.

Those people are wrong. Does the board not have an attorney to whom they can turn for clarification? Certainly they can understand that a bunch of lay people arguing about a legal matter is a fruitless pursuit.

Actually it is the opposite, multiple attorneys and the recent Boards use them for everything. I am not exaggerating. They are depleting the funds of a small POA, with no community property, no hard assets except cash, and one that a few years ago had roughly 5 times its normal operating expenses in cash with no liabilities (until 2019, when the crazy send everything to the attorneys phase started, expenses were shy of $20K, with over $100K in bank with only monthly expenses - no liabilities other than monthly bills.)

Now they send everything to attorneys. For example, they canceled an opening meeting, a day or two before, because one of the five has a schedule conflict come up. One or more members make a simple complaint, for example reply to cancelation notice saying "you can still have the Board meeting with 4 of the 5 - why cancel at last minute." The Board runs that by the attorney - can we have a meeting with four or the five.

Previous to 2019, absent a once in fifteen year restriction amendment year, the Association had a zero to a few hundred dollars in legal expenses. Then it went to $5K, $7k...$10K plus, and now I am hearing rumors it will be near $20K with nothing of note done.

Seriously: If you were to ask this Board, " sorry I deleted the meeting announcement, what time is the upcoming meeting", they will run it by the Attorney.

KerryL1 (California)
Posts: 14,550

Posted:

Thanks for your clarification that you cited the entirely of Sect. 6. Now that I read it completely, it does seem to say that, no matter what, the Owners have the final word.

RogerJ1 (Texas)
Posts: 550

Posted:

Quote:

Posted By KerryL1 on 12/10/2022 8:50 AM
Thanks for your clarification that you cited the entirely of Sect. 6. Now that I read it completely, it does seem to say that, no matter what, the Owners have the final word.

Wouldn't the first part "(i) by the affirmative vote of a majority of the Board at a meeting of the Board called for that purpose at which a quorum is present, or" make the rest moot. giving the Board cart blanche to change the Bylaws under that clause?

I am not arguing - I really want to know and more importantly understand it. If the other parts counter the Board doing it alone under (i), please explain how.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

The provisions of this Section 6 may not be amended without the prior approval of the majority vote of Members.

I read this to say 1 and 2 stand are the way it is but they be changed by approval of the majority (51%) of Members.

KerryL1 (California)
Posts: 14,550

Posted:

Yes, JohnC's last post seems to give the poor to the Board. That is why I asked if there are any other "provisions" in Sect. 6. I'm not sure Roger answered that part of my question.

Is it possible TX corporations codes have something to say about this?