TBOC Sec. 22.159. QUORUM OF MEMBERS.

Started by ConchoP • 7 replies • 192 views

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ConchoP (Texas)
Posts: 208

Posted:

Sec. 22.159. QUORUM OF MEMBERS. (a) Unless otherwise provided by the certificate of formation or bylaws of a corporation, members of the corporation holding one-tenth of the votes entitled to be cast, in person or by proxy, constitute a quorum.

(b) The vote of the majority of the votes entitled to be cast by the members present or represented by proxy at a meeting at which a quorum is present is the act of the members meeting, unless the vote of a greater number is required by law or the certificate of formation or bylaws.

(c) Unless otherwise provided by the certificate of formation or bylaws, a church incorporated before May 12, 1959, is considered to have provided in the certificate of formation or bylaws that members present at a meeting for which notice has been given constitute a quorum.

Our Board is trying to determine the meaning of section b. Yes, he has explained it, but we still don't understand... Our Attorney states that If a quorum (5% as in our govern docs) is present,
70% (as in our govern. docs) of the votes cast by the quorum will decide the outcome unless a higher number of votes is required by law, the certificate of formation, or the bylaws.

Therefore, 70% of the 5% of the HOA voting members would be needed to amend our declaration.

DeanJ
Posts: 1,786

Posted:

b) The vote of the majority of the votes entitled to be cast by the members present or represented by proxy at a meeting at which a quorum is present is the act of the members meeting, unless the vote of a greater number is required by law or the certificate of formation or bylaws.

Simply stated,

1. You have to have a quorum
2. 50%+1 is an act of the members.
3. When the HOA documents require a greater number, the association documents prevail.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

.. .snip ...

Therefore, 70% of the 5% of the HOA voting members would be needed to amend our declaration.

You can't conclude this. And it doesn't make sense. It would invite legal challenge if such a small minority of owners were allowed to make such a change.

There will be language elsewhere in the declaration that specifically addresses amendments. You need to read this. In most of the declarations I've seen, amendments require a percentage *of the entire membership*, not a percentage of those present at a meeting. There will probably also be language that addresses what sort of changes require unanimous approval - usually these are things that deal with the fundamental nature of the property you own.

I have heard of a few communities where such changes can be made by the majority present at a meeting. These communities are also risking a legal challenge from ticked off owners.

TL?DR: You need to read ALL of the declaration (and bylaws) to make sure you've found all relevant pieces before making decisions.

DouglasK1 (Florida)
Posts: 2,046

Posted:

Typically the quorum requirements in the governing docs have to do with meetings of the members to hold an election for directors.

In most cases there are higher requirements to amend the CCRs.

Escaped former treasurer and director of a self managed association.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Concho

What you posted says twice, "unless otherwise stated in your docs". What do your docs say about quorum?

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By ConchoP on 09/01/2024 8:15 AM

Sec. 22.159. QUORUM OF MEMBERS. (a) Unless otherwise provided by the certificate of formation or bylaws of a corporation, members of the corporation holding one-tenth of the votes entitled to be cast, in person or by proxy, constitute a quorum.

IF your governing documents do not specify the number needed for a quorum, then the quorum will be equal to 1/10 of the voting interest (typically 1 vote per lot, so 10% of the lots).

Quote:

Posted By ConchoP on 09/01/2024 8:15 AM

(b) The vote of the majority of the votes entitled to be cast by the members present or represented by proxy at a meeting at which a quorum is present is the act of the members meeting, unless the vote of a greater number is required by law or the certificate of formation or bylaws.

This section specifies that a quorum must be present for the members to vote.
The quorum may be in person, by proxy or a combination of both.

Additionally it specifies that if a quorum is present, you need a simple majority of the lots present to have a vote count UNLESS your governing documents specify a different amount.

Typically, the CC&Rs specify requiring 2/3 of the membership to amend.
Often, the Bylaws and Articles of Incorporation also specify the number needed to amend.

Expecting the above to be true, then a simple majority would apply to issues other than amending governing docs. An example would be electing Directors or approving minutes.
However, some Bylaws will specify an amount needed for election to the board.

Quote:

Posted By ConchoP on 09/01/2024 8:15 AM

(c) Unless otherwise provided by the certificate of formation or bylaws, a church incorporated before May 12, 1959, is considered to have provided in the certificate of formation or bylaws that members present at a meeting for which notice has been given constitute a quorum.

Example: Association size 100 lots.

Quorum = 10 lots (unless your governing documents specify something else.

Meeting attendance has 20 lots represented in person or by proxy.

Minimum number of yea votes to approve minutes: 11 (20 lots divided by 2 + 1)
Minimum number of yea votes to elect Directors: 11
Minimum number of yea votes to amend Covenants: 67 (100 lots, divided by 3, multiplied by 2, rounded up)

Hope this helps.
Hence, a quorum is present and business can be conducted (matters voted on).

Not applicable to HOAs

TimB4 (Tennessee)
Posts: 21,059

Posted:

Sorry, my I dropped an important line of text.

(c) does not apply to HOAs

The example I provided would apply to most associations based on typical language in the governing documents I have read.

KerryL1 (California)
Posts: 14,550

Posted:

As others wrote, your CC&Rs (or maybe your Certify of Formation?) will set the % of owners needed to amend the declaration. As Tim, wrote, it's often 2/3 but might be 75% to approve amendments.

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