condo bylaws amendment vote requirements

I own/live in an owner-controlled condominium in Missouri.

At our recent annual meeting of the members, we voted for or against amending our bylaws to say our BOD of directors is five members (it used to be three members). Anyway, it passed by 51% of the votes in the association) and our managements company's attorney was supposed to draft the amendment. Instead, she sent the owners an email saying that the vote had to be 67 and 2/3% of the votes in the association.

Our bylaws say: "An amendment to these Bylaws shall be made and approved in the manner set forth in Section 448.2-117 of the Act https://revisor.mo.gov/main/OneSection.aspx?section=448.2-117 and by not less than sixty-seven (67%) percent of the Units, and once made, shall become effective when recorded in the same manner and place as an amendment to the Declaration."

However, that section of the Act is regarding the Declaration, not the bylaws. Also, Missouri has no requirement to file the bylaws with anyone -- it's just an internal document.

Here's the the section of the Act that speaks to the bylaws: https://revisor.mo.gov/main/OneSection.aspx?section=448.3-106&bid=24922&hl=

It it possible that our declaration says it has to be 66 and 2/3 because it was written back when it was a declarant-controlled building, and now that we're owner-controlled we should be amending with a simple majority?

BTW, the attorney that said our vote was invalid works for the developer, and has given us incorrect info in the past :/

Thank you for your help!

You posted [emphasis added]:

Our bylaws say: "An amendment to these Bylaws shall be made and approved in the manner set forth in Section 448.2-117 of the Act https://revisor.mo.gov/main/OneSection.aspx?section=448.2-117 and by not less than sixty-seven (67%) percent of the Units, and once made, shall become effective when recorded in the same manner and place as an amendment to the Declaration."

Due to that little word "and" I would agree with the attorney.
Your bylaws are not in conflict with the bylaw section of the statute you provided (thank you for that), they are simply more restrictive.

Therefore, your association must meet both requirements.
Prior to the next vote, I would suggest an amendment to address that issue.

It's not a bad idea to have an attorney review an amendment.

However, I've seen amendments to the bylaws where no attorney was utilized. Not having the proper legalize could cause an issue if challenged.

Hence, two opinions over the same language and documents.

To determine which opinion is to be followed, one would have to take the issue to court for a ruling.
Of course, this is how attorneys make money.

Until such legal challenge is made and resolved, those on the board make the decision.

I revise my response. I agree with TimB4. This is because scenarios arise all the time where covenant/bylaw x requires a certain minimum, but a statute/city ordinance requires a higher minimum.

E.g. Covenant X requires lot boundary walls to be a minimum of five-feet high. City ordinance Y requires lot boundary walls to be at least four feet high. Is there a conflict? No. Owners in the HOA must have lot boundary walls at least five feet high, thus complying with both the covenant and statute. (I think, but am not certain, that the latter is actually a rule of interpretation: If there is a reasonable interpretation that would satisfy both the covenant and the statute, then that's the one to use.)

Similarly here, the bylaw requires at least 67%. The statute says a "majority" (regardless of the "only"). Is there a conflict? Many would say no. If 67% or more is achieved, both the bylaw and statute's requirements are met.

As TimB4 indicated, a court might have to settle this.

TimB4, thank you so much for your responses! I really appreciate your time.

ElleN -- thank you so much for your responses! I really appreciate it.

ElleN -- thank you so much for your responses! I really appreciate it.

ElleN -- thank you so much for your responses! I really appreciate it.

The developer (who didn't do our building ANY favors) owns and personally oversees the day-to-day business of our management company.

Our management company is the client of the attorney. Therefore, our HOA is also this attorney's client?

Thank you!

Got it - thank you.

48 units. Thanks for your response -- A new HOA attorney may need to be our first priority. I can definitely see the nondisclosure of construction defects being a costly problem, especially in our building, which was a 1908 factory until 2008 when it was converted to condos. Thank you!

Imo, and I'm not a lawyer, the Act--precisely because it uses the word "only-- prevails over your Bylaws. I'd simply ask the HOA attorney. even if toooo pro-developer, the topic shouldn't be of concern so far as I can imagine. Though we've occasionally seen higher % here, it's very typically a simple majority vote that's needed to amend bylaws.

Elle's example, Covenant X requires lot boundary walls to be a minimum of five-feet high. "City ordinance Y requires lot boundary walls to be at least four feet high." But it seems to me that the comparable City ord. to the Act would be: Lot boundary walls must be ONLY 4 feet high. There is no question in this formulation that HOA wall may not be any height except 4 feet.

Your HOA sounds very interesting, Beck. Is the building greystone or brownstone? Brick? Other? From my high rise I have a nice view of a 100 year old Pencil Factory that is a part of a high rise -- all is brick and feels so Chicago to me. It is, in fact, very common to see in my region newer high rises that spring out of old factories. One here rises out of an old 1920s electric company building. I have never heard of any particular issues with the older portions of these buildings. But EVERY high rise has undergone construction defect legal action as did our completely new one.

I understand your argument, Elle, but disagree per my above reasoning. Beck needs legal advice in writing from the HOA attorney or their new one that I hope they hire soon. Of course, they can start a campaign to amend the bylaws, and most likely there are other sections that they might want to amend tooo, i.e, dump all developer language, and more.

Oh, probably my fault, but I cannot see why a 3 member board favors the developer?

Did the Board already appoint two additional directors? If so, and until this is sorted out, is there any reason you cannot invite these two to your boar meetings so they can hear th deliberations and discsiont o prepare them for real service?

By the. way, It is NOT the MC's right to email owners with the news that the amendment was not valid. The attorney should should have definitely consulted with the Board first to help with the wording. Her letter may make the board look incompetent or sloppy. She works for your hOA and does not make decisions that go to owners. She advises the Board.