Variable Number # of Board of Directors wording in byalws

WendyM5 (North Carolina)
Posts: 1,522

Posted:

Does anyone have experience with an HOA having bylaws that state the number of directors can be 3 to 7 people?
Doese this rule cause problems? How are more board seats added? Or removed?
I'm imaging it might be like the SCOTUS. Liberal Vs. Conservaties. One side wants more seats added when they are "loosing", the other side wants to keep the status quo.
I also see it as a way to dillute the power of toxic board members that are harrassing people. Of course that only works if there is a mechanism the general membership can use to add a board member.
Happy Holidays everyone!

vis ta vie

TimB4 (Tennessee)
Posts: 21,059

Posted:

My last association had a variable of minimum of 3 maximum of 5.

We always tried to fill 5 seats. Considered 3 a quorum for the board.
However, if we only had three seats filled, it gave the board the option of not having to fill the other seats (i.e. beg for volunteers).

It worked for us.
With larger numbers, the work was spread around.
Example: a secretary and a treasurer vs. one secretary/treasurer

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By WendyM5 on 12/24/2023 5:42 AM
Does anyone have experience with an HOA having bylaws that state the number of directors can be 3 to 7 people?
Doese this rule cause problems? How are more board seats added? Or removed?
I'm imaging it might be like the SCOTUS. Liberal Vs. Conservaties. One side wants more seats added when they are "loosing", the other side wants to keep the status quo.
I also see it as a way to dillute the power of toxic board members that are harrassing people. Of course that only works if there is a mechanism the general membership can use to add a board member.

In my opinion the appropriate (and perhaps legally required) way around your quite valid (AFAIC) concerns is to always run the annual election so that the maximum number of seats are advertised as being open. For example, suppose:

-- Currently three people are serving on the board, each with a two year term. They were elected by owners at the annual meeting
eight months ago.

-- The annual election is coming. The board is preparing notice. The board should advertise four seats being open and invite candidates to apply for those four seats.

Regarding ranges of board seats: I think one of the biggest problems mentioned here is boards getting cute and thinking they, without an amendment, can fix at a constant number (not a range) the number of board seats. Chaos and dissent often result.

BillH10 (Texas)
Posts: 1,217

Posted:

Yes.

The association in which we reside had such wording in the Bylaws. It created problems in that there were never sufficient candidates to fill the vacancies, and, as a side issue, 7 directors is at least 2 directors too many for a 105 SFH sub-association of a 9000+ home master association.

After several years of issues with board members and owners, the Board simply advertised henceforth there would be only 5 of the 7 board seats filled. While well intentioned, several owners objected there was no empowering language in the Bylaws to allow the Board to make such a pronouncement. However, instead of just complaining, those members asked to be designated as a committee to investigate amending the Bylaws.

After several months of meetings, reviewing similarly sized associations, and a couple of calls with the attorney, an amendment to the language in the Bylaws was proposed which set the number of directors at 3. The amendment was approved by a large margin, and remains in place to this day, about 12 years later.

WendyM5 (North Carolina)
Posts: 1,522

Posted:

Quote:

Posted By ElleN on 12/24/2023 7:42 AM

Posted By WendyM5 on 12/24/2023 5:42 AM
Does anyone have experience with an HOA having bylaws that state the number of directors can be 3 to 7 people?
Doese this rule cause problems? How are more board seats added? Or removed?
I'm imaging it might be like the SCOTUS. Liberal Vs. Conservaties. One side wants more seats added when they are "loosing", the other side wants to keep the status quo.
I also see it as a way to dillute the power of toxic board members that are harrassing people. Of course that only works if there is a mechanism the general membership can use to add a board member.

In my opinion the appropriate (and perhaps legally required) way around your quite valid (AFAIC) concerns is to always run the annual election so that the maximum number of seats are advertised as being open. For example, suppose:

-- Currently three people are serving on the board, each with a two year term. They were elected by owners at the annual meeting
eight months ago.

-- The annual election is coming. The board is preparing notice. The board should advertise four seats being open and invite candidates to apply for those four seats.

Regarding ranges of board seats: I think one of the biggest problems mentioned here is boards getting cute and thinking they, without an amendment, can fix at a constant number (not a range) the number of board seats. Chaos and dissent often result.

so if there are only 3 board members but 7 total seats, how is the language worded such that 3 board members still make quorum?
What happens if the 3 member board starts harrassing people 6 months latter and then people want to get on the board to correct the harrassement issues? Is a special election called or do the people have to wait till the next election? HOA's can rack up tens of thousands of dollars in legal bills in 6 months.

vis ta vie

WendyM5 (North Carolina)
Posts: 1,522

Posted:

Quote:

Posted By TimB4 on 12/24/2023 6:53 AM
My last association had a variable of minimum of 3 maximum of 5.

We always tried to fill 5 seats. Considered 3 a quorum for the board.
However, if we only had three seats filled, it gave the board the option of not having to fill the other seats (i.e. beg for volunteers).

It worked for us.
With larger numbers, the work was spread around.
Example: a secretary and a treasurer vs. one secretary/treasurer

if you can post exact language that would be very helpful. thanks.

vis ta vie

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By WendyM5 on 12/24/2023 10:19 AM

so if there are only 3 board members but 7 total seats, how is the language worded such that 3 board members still make quorum?

What do your HOA's bylaws say is a board quorum?

The NC HOA statute says:

Unless the bylaws specify a larger percentage, a quorum is deemed present throughout any meeting of the executive board if persons entitled to cast fifty percent (50%) of the votes on that board are present at the beginning of the meeting

If your bylaws are either silent or say the same thing as the statute, then to me the key phrases are "entitled to cast" and "on that board." If there are only three board members, and since 1.5 directors is an impossibility, then two directors is a quorum.

Quote:

Posted By WendyM5 on 12/24/2023 10:19 AM
What happens if the 3 member board starts harrassing people 6 months latter and then people want to get on the board to correct the harrassement issues? Is a special election called or do the people have to wait till the next election? HOA's can rack up tens of thousands of dollars in legal bills in 6 months.

Owners have the option of a recall. Owners could also ask that any empty seats be filled via an election or appointment, but that's getting legally messy.

Aside: I support BillH10's solution. Good anecdote (I say).

WendyM5 (North Carolina)
Posts: 1,522

Posted:

Quote:

Posted By ElleN on 12/24/2023 10:31 AM

Posted By WendyM5 on 12/24/2023 10:19 AM

so if there are only 3 board members but 7 total seats, how is the language worded such that 3 board members still make quorum?

What do your HOA's bylaws say is a board quorum?

The NC HOA statute says:

Unless the bylaws specify a larger percentage, a quorum is deemed present throughout any meeting of the executive board if persons entitled to cast fifty percent (50%) of the votes on that board are present at the beginning of the meeting

If your bylaws are either silent or say the same thing as the statute, then to me the key phrases are "entitled to cast" and "on that board." If there are only three board members, and since 1.5 directors is an impossibility, then two directors is a quorum.

Quote:

Posted By WendyM5 on 12/24/2023 10:19 AM
What happens if the 3 member board starts harrassing people 6 months latter and then people want to get on the board to correct the harrassement issues? Is a special election called or do the people have to wait till the next election? HOA's can rack up tens of thousands of dollars in legal bills in 6 months.

Owners have the option of a recall. Owners could also ask that any empty seats be filled via an election or appointment, but that's getting legally messy.

Aside: I support BillH10's solution. Good anecdote (I say).

Pretty sure our bylaws say 50% is quorum. Our membership voted on 2 year terms this past fall. Really wish it was 1 year terms, it gets complicated keep track what year term it is for board members, expecially when the number of board members could change from year to year.

vis ta vie

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By WendyM5 on 12/24/2023 11:00 AM

Pretty sure our bylaws say 50% is quorum.

I just checked your bylaws, per what you provided in your other thread. First, I am confused. Right now I see that Bylaw 4.5 says the board is supposed to have three directors. I do not see a range listed.

What am I missing?

Is an amendment to the number of directors being considered?

Bylaw 5.3: "A majority of the number of directors shall constitute a quorum for the transaction of business."

I agree about the problems with staggered terms. Many report here on how historical records have been lost and the terms for Director X umpty-squat years ago got munged, messing up all the other terms, et cetera. Laypeople (owners, directors and managers) trying to follow the covenants and statutes is hard enough. (It's ridiculous, IMO.) Staggered terms have an advantage, but I think all HOAs having them should have language about how to recover the staggered terms when records of where the HOA is at have gone missing.

ElleN (Idaho)
Posts: 4,420

Posted:

WendyM5, NC Planned Community Act requires that the Bylaws provide for a method of amending the bylaws. See https://www.ncleg.gov/EnactedLegislation/Statutes/HTML/BySection/Chapter_47F/GS_47F-3-106.html.

Do your bylaws give an amendment procedure? I am not seeing this.

State statutes do not seem to provide a method for amending the bylaws when the bylaws are silent about amending.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Our Bylaws say:

Section 2. Number of Directors. The number of directors in the Association shall be not less than three (3) nor more than seven (7), as provided in Section 4 below.

We have always run with 5 but at times we have been as low as 3 and decided to wait until next election time rather then fill a vacancy. Nothing in our Bylaws says who defines BOD size. We will deal with any challenge if and when it arises. As we have to beg people to be on our BOD I doubt we ever will be challenged.

WendyM5 (North Carolina)
Posts: 1,522

Posted:

Quote:

Posted By ElleN on 12/24/2023 11:32 AM
WendyM5, NC Planned Community Act requires that the Bylaws provide for a method of amending the bylaws. See https://www.ncleg.gov/EnactedLegislation/Statutes/HTML/BySection/Chapter_47F/GS_47F-3-106.html.

Do your bylaws give an amendment procedure? I am not seeing this.

State statutes do not seem to provide a method for amending the bylaws when the bylaws are silent about amending.

Nope our bylaws are silent on how to amend. We discussed this awhile ago and there was some confusion if the 55a non profit statue applied, whether the bylaws were even notarized and propertly recorded. In the end I think we will go with 55a's amendment procedure.

and yes I am working on making suggestion to update the bylaws which are a s**tshow IMHO.

vis ta vie

WendyM5 (North Carolina)
Posts: 1,522

Posted:

Quote:

Posted By ElleN on 12/24/2023 11:14 AM

Posted By WendyM5 on 12/24/2023 11:00 AM

Pretty sure our bylaws say 50% is quorum.

I just checked your bylaws, per what you provided in your other thread. First, I am confused. Right now I see that Bylaw 4.5 says the board is supposed to have three directors. I do not see a range listed.

What am I missing?

Is an amendment to the number of directors being considered?

Bylaw 5.3: "A majority of the number of directors shall constitute a quorum for the transaction of business."

I agree about the problems with staggered terms. Many report here on how historical records have been lost and the terms for Director X umpty-squat years ago got munged, messing up all the other terms, et cetera. Laypeople (owners, directors and managers) trying to follow the covenants and statutes is hard enough. (It's ridiculous, IMO.) Staggered terms have an advantage, but I think all HOAs having them should have language about how to recover the staggered terms when records of where the HOA is at have gone missing.

Yep I am making a list of suggested changes. I think drawing straws is the only fair way to do it, or just make terms one year long.Also thought about making a list of board seats on the website and when they expire for the next 30 years so anyone can check it as needed. Or just include the list in the bylaws.

vis ta vie

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By WendyM5 on 12/24/2023 2:10 PM

Nope our bylaws are silent on how to amend. We discussed this awhile ago and there was some confusion if the 55a non profit statue applied, whether the bylaws were even notarized and propertly recorded. In the end I think we will go with 55a's amendment procedure.

So far I buy 55A-10-21 applying.