Amendments to by-laws

Started by AnnS12 • 21 replies • 383 views

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AnnS12 (Wisconsin)
Posts: 67

Posted:

At our board meeting this month, one of our board members talked about previous by-law amendments that were filed with the Clerk of courts. My question is, when new owners receive the CCR's and by-laws, (DISCLOSURE DOCUMENTS) should these amendments be attached? We purchased our unit 7 years ago and the only amendment attached was one the developer added when they built the second phase of the development. Supposedly there have been other amendments approved before we moved here, but we've never seen them. I'm now the board secretary and I'm concerned we aren't giving new owners all of the required information. I don't even know what the amendments pertain to.

I want to make sure we are giving new owners everything they are legally entitled to.

WendyM5 (North Carolina)
Posts: 1,522

Posted:

yes you should give all amended documents to new owners.
contact Wisconsin Recorded Document Search - Visit your county recorder's office to find HOA documents, like CC&Rs, Amendments, Bylaws, HOA Notices, Subdivision Maps, Plats, Recorded Land Surveys, Deeds, Deeds of Trust, Liens, and Judgments. Search under the subdivision or community name.

if they were never filed, then they never happened is what NC law says, not sure what yoru state laws are.

https://www.hopb.co/wisconsin

vis ta vie

ElleN (Idaho)
Posts: 4,420

Posted:

AnnS12, your suspicions are correct, though I think you should fine tune your thoughts a bit before speaking to the board.

Your prior threads indicate this is a condominium. The Wisconsin Condo Act says a seller must provide among other things copies of the "existing declaration, the bylaws, and any rules or regulations." The statute further declares that "Declaration" means "the instrument by which a property becomes subject to this chapter, and that declaration as amended from time to time."

See https://docs.legis.wisconsin.gov/statutes/statutes/703

Legally, the Bylaws are seen as a part of the Declaration (subservient to the Declaration to be even more exact). Hence amendments to the bylaws should be included in the disclosure too.

Sellers or their agents normally request condo managers assemble a package. Doing so is second nature to the typical manager. Often a reasonable fee is charged for this service.

KerryL1 (California)
Posts: 14,550

Posted:

Yes, with others, you want them in a disclosure package. It is important to make sure those mentioned are real and not someone's flawed memory, that you possess them and that they somehow attached to the bylaws. Usually, bylaws do not matter in owners' everyday lives in that way that CC&Rs do, but they must be up to date.

KerryL1 (California)
Posts: 14,550

Posted:

AnnS12 (Wisconsin)
Posts: 67

Posted:

one last question. Should a copy of these amendments be given to all owners or just new buyers

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By AnnS12 on 02/03/2023 12:23 PM
one last question. Should a copy of these amendments be given to all owners or just new buyers

In Wisconsin, the law says that a seller must give these docs (including amendments), "Not later than 15 days prior to the closing of the sale of a unit to a member of the public... " See https://docs.legis.wisconsin.gov/statutes/statutes/703/33 . When a seller or his/her agent requests these docs in order to complete a sale, the HOA should provide them, possibly charging a reasonable fee as allowed by law.

Your other question is about what docs must be recorded with the county and more. I advise your Board to ask a HOA attorney. If you all have not been recording amendments, this may be problematic.

You are welcome.

KerryL1 (California)
Posts: 14,550

Posted:

Yes, by all means, give all owners copies of the legitimate bylaws amendments. Post them on your website if you have one.

Many states do not require that bylaws be recorded. What about Wisc, Ann?

MelissaP1 (Alabama)
Posts: 13,836

Posted:

By-laws, CC&R's, and Articles of Incorporation are PUBLIC documents. It would be a "courtesy" for the HOA to provide but not required. In many states the Seller is to provide this. Some HOA's can post them on their websites if they want. Otherwise, they are available online or in office at County (CC&R's) and State (Article of Incorporation). Although sometimes the term By-law and CC&R's are used interchangeably. There is a difference. If there is such a document called "By-laws" then that is HOA's responsibility to provide. If it is CC&R's then those are Public and to be filed. Often for convenience both are filed together. CC&R's is more like an "outline" and the By-laws" fill in the blanks the Outline doesn't include.

Now let Kerry rip into my advice... we all know it's coming... can't wait what it will be this time....

Former HOA President

MaxB4
Posts: 3,513

Posted:

Quote:

Posted By MelissaP1 on 02/03/2023 3:47 PM
By-laws, CC&R's, and Articles of Incorporation are PUBLIC documents. It would be a "courtesy" for the HOA to provide but not required. In many states the Seller is to provide this. Some HOA's can post them on their websites if they want. Otherwise, they are available online or in office at County (CC&R's) and State (Article of Incorporation). Although sometimes the term By-law and CC&R's are used interchangeably. There is a difference. If there is such a document called "By-laws" then that is HOA's responsibility to provide. If it is CC&R's then those are Public and to be filed. Often for convenience both are filed together. CC&R's is more like an "outline" and the By-laws" fill in the blanks the Outline doesn't include.

Now let Kerry rip into my advice... we all know it's coming... can't wait what it will be this time....

No, actually I'll do the ripping.

HOA's and MC's get bad raps and many times it's called for. You say it's really not the HOA's job to provide these documents leaves a very bad taste in my mouth. We are in the service business, NOT kick the can down the road business. I provide a web portal for ALL my clients. In it, there are all the governing documents including amendments, minutes, agendas, reserve studies, monthly financials, and master insurance information. This should be a requirement in all 50 states. Sorry, if you're self-managed and don't get paid, change the law.

IF you don't get it, you shouldn't be allowed to serve on a board.

KerryL1 (California)
Posts: 14,550

Posted:

Melissa wrote: "CC&R's [sic]is more like an 'outline' and the By-laws" fill in the blanks the Outline doesn't include." Look, the reason I butt in so often is the I imagine newer HOA leaders or owners read these and are trying to learn.

The quotation above is completely incorrect in its insistence about the difference between the two governing documents. If no one else is willing to correct it for the sake of newer folks to HOAs, I'll do it later.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Have you ever read the two documents and know what an outline is? If so, then you would know a CC&R is a document for the outline of how the HOA is to run. A By Law is for the actual internal use of the HOA that the HOA uses for filling in the details more clearly.

Example: CC&R says no parking . The By Law would say. No parking except for HOA vehicle that is purple.

A By Law purpose is for the HOA to use to customize and change for its own use. It does not require filing in most states because it is NOT a public documents. Plus it is for the HOA to keep fluid versus a CC&R that is stricter and requires public filing.

Former HOA President

MaxB4
Posts: 3,513

Posted:

Quote:

Posted By MelissaP1 on 02/03/2023 6:20 PM
Have you ever read the two documents and know what an outline is? If so, then you would know a CC&R is a document for the outline of how the HOA is to run. A By Law is for the actual internal use of the HOA that the HOA uses for filling in the details more clearly.

Example: CC&R says no parking . The By Law would say. No parking except for HOA vehicle that is purple.

A By Law purpose is for the HOA to use to customize and change for its own use. It does not require filing in most states because it is NOT a public documents. Plus it is for the HOA to keep fluid versus a CC&R that is stricter and requires public filing.

No...No...No...!

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Yes, yes, yes.. that is what she said. Why do you think a By law is not required a By law is filed but a CC&R is? CC&R goes with the land. By laws go with HOA

Former HOA President

MaxB4
Posts: 3,513

Posted:

The CCRs are what they say, Covenants, Conditions, and Restrictions. It says what the owner can or cannot do. It will outline what responsibilities the HOA has and what the owner has in regard to units and common areas.

Bylaws are for the corporation, when is the fiscal year, how elections are run, what is a quorum, how many directors, what qualifications they might need, and what are officers.

And you were the president of an HOA?

WendyM5 (North Carolina)
Posts: 1,522

Posted:

Quote:

Posted By AnnS12 on 02/03/2023 12:23 PM
one last question. Should a copy of these amendments be given to all owners or just new buyers

they should be given to all owners. the easiest way is to host them on a free google website or through google drive and then email the link.

vis ta vie

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Our original docs are in a JPG file. We have had 5 amendments all of which have been filed with the County. I converted the JPG file to a MS Word Doc. One doc for the Covenants and one doc for the Bylaws. I also included the 5 amendments high lighting the old and the new amendments.
There is also a disclaimer at the top of each doc saying this was converted form the original JPG doc and should be used for reference only and the original JPG doc is the legal doc. Also that as of 01/01/1995 the Declarant is no longer involved and any reference to such should be ignored.

We hide nothing. Anyone that requests a copy of our docs, and I mean anyone, receives an Email with the original JPG doc and the converted docs. Takes all of 30 seconds to honor their request.

KerryL1 (California)
Posts: 14,550

Posted:

Re: Melissa's assertion, Bylaws are as Max describes.

An HOA's Rules and Regulations are where owners find such matters as trash cans, specifics about parking, pet control, etc.. They elaborate on the CC&Rs. In most Bylaws they may only be amended by a vote of the Owners, usually a simple majority. We have seen here that some (very few?) boards may amend the bylaws without owner votes.

This is important because many new to HOA governance or new as HOA owners think that the Bylaws focus on owner's individual conduct in the common areas, what they may do to the exterior or of their homes and yards, etc. Bylaws do not do that.

In my HOA, and I guess in many, Rules & Regs are a governing document. In many states, the board may add, delete, alter Rules. In CA, owners have some voice as proposed rules are sent to owners for a 28-day comment period. The Board considers them at a subsequent open meeting before voting. Owners' comments have made a difference occasionally in my HOA.

ElleN (Idaho)
Posts: 4,420

Posted:

I am keeping in mind that in Michigan, there is no HOA statute (only a nonprofit corporation statute and I think a condo statute). Michiganders have come to this forum and demonstrated that their bylaws often do in fact contain use restrictions on land and homes. This is different from much or most of the rest of the country, where use restrictions typically appear only in the Declaration of CC&Rs.

Like Michigan, Wisconsin also has no HOA statute. The OP speaks of bylaws and CCRs. I am not 100% sure the amendments she mentioned are not amendments to use restrictions that are in her Wisconsin HOA's bylaws. These amendments might be as significant as amendments to a Declaration in other states.

The OP said the amendments are all filed (recorded) with the county. I do not know that the HOA has an obligation to distribute these amendments to the owners at this time. Make them available upon request, yes. But send out copies to all owners right now? I'd say that's not necessary.

AnnS12 (Wisconsin)
Posts: 67

Posted:

thank you to everyone that responded. My next step will be to go to the courthouse and get copies of all filed amendments.
In the future we will attach all amendments to our disclosure documents given to all new owners.

Since we will be discussing this at our next board meeting. I'll also attach copies of the filed amendments to those minutes so all owners will have copies.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By ElleN on 02/04/2023 11:09 AM
But send out copies to all owners right now? I'd say that's not necessary.

I think the OP understandably wants to wrap this up. FWIW, the reason I am hesitant to distribute all the amendments is because there seem to be signs that sellers there have not disclosed all the amendments in the past. The HOA may have unwittingly abetted this. If the amendments have changed things meaningfully, I am not sure I am ready to possibly stir things up. E.g. the HOA tries to enforce an amendment on owner Poslosky. Poslosky says, "What? The seller never gave these to me." Seller Jones from five years ago says, "That's right, because I gave Poslosky what the HOA gave me. The HOA did not give me any amendments."

Better to be transparent, I know.

At least the amendments are recorded with the county. That counts for something (possibly a lot).

KerryL1 (California)
Posts: 14,550

Posted:

I agree with you, Ann. Once you make certain these bylaws amendments are valid & legal, they should be attached to your existing bylaws. I think I'd be a little concerned about their validity. How may bylaws in your HOA be amended?

I'm now thinking your HOA attorney may need to review them to make sure they're appropriate. Once you find them, it'd be great if you also could find the minutes of the meetings at which their approval occurred. Do you have a sense of how many amendments are missing from your HOA's files on this topic?

Do your bylaws contain rules of behavior for owners?

Adding them to the subsequent meeting's minutes might make sense too.

I do now recall, ElleN, the Mich. example from a while back. Perhaps Melissa's state or HOA's bylaws do contain behavior rules for owners. Perhaps she can cite them for us.

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