Our Bylaws are so messed up

Most of you are likely aware that our governing documents are a complete mess. They were obviously written by individuals who did not understand how Associations run, legalize and probably never read the applicable corporation law.

The Bylaws are silent on Directors.
No mention of them whatsoever.

I just took another look at are Bylaws and discovered this little legalize issue:

As a reminder, our Bylaws do have members elect officers.

That procedure is "All Officers shall be chosen annually by the majority vote of the members."

Did you catch the phrase "of the members"?

The Bylaws did not say a majority vote of the members at a meeting.
They said majority vote of the members.

My Association, that can not make a quorum at meetings because it is set too high, requires each officer to receive a majority of all possible association votes (42 out of 83 lots).
In the past 19 years, it appears that officers were properly elected once (receiving 42 or more votes).

Jack,

Actually, records indicate that the current board was properly elected in accordance with the badly written Bylaws.
Last year, we had a quorum, so we were able to conduct business and have a vote.
The current board received 42 votes or more for their officer position.

The way the Bylaws are written (along with my interpretation of that sentence)is:

Quorum = 56 (2/3 of 83 lots)
Director = plurality of the votes
Officer = 42 votes or more

Regarding your suggestion of paying members to attend and vote: Our assessment is $50 per year.

Observations --

-- Nowhere do your bylaws refer to a "board."

-- Your bylaws do give the responsibilities for the officers (president, VP, secretary, treasurer). The responsibilities are quite specific.

-- The bylaws were signed in [redacted for privacy reasons]. Less than a month later, the HOA was also incorporated and so became subject to Tennessee's nonprofit corporation statute sections.

-- The statute and bylaws are to be read so as to have harmony, if at all possible.

-- The statute is clear that the HOA corporation must have a board; the board must be elected annually; and the board manages the affairs of the corporation. The statute also speaks a bit to board meetings.

-- The statute says the board may remove officers at any time. When officer vacancies arise, the statute is not as clear re appointing officers mid-term. At the same time, the bylaws are clear that officers are elected only annually. This is a conflict of sorts. Do what is reasonable and fair. Like just having the board appoint officers mid-term.

-- I believe the statute and bylaws are about 99% harmonious.

-- Regarding the election (as given in the bylaws) of officers: I would not call anything that happened with improperly elected officers unlawful. If you need elaboration, ask. Part of my answer will speak to "course of conduct" and "acquiescence" (no one objected at the time). These translate to there being nothing to do but go forward.

-- Yes, the not-so-great bylaws make the board's job difficult. Mostly because few of the owners will understand the law here. This is the biggest problem by far, especially with a rabble-rouser who does not study.

-- If a majority of members does not elect an officer, then the board should step in and just appoint the officers. If the board is reasonable in appointing officers, and no one objects, great.

-- What are your concerns at this point?

-- I admit I would be disgusted with the situation. I would try to remember to just do the best I can, given the bylaws and the membership make-up.

To be honest, I don't think I have a concern except how to sell the need for changes to a membership divided on the need for change.

I did miss the fact that the Bylaws were written and adopted by the board prior to being incorporated.
Thank you for pointing that out. It does change my perception a bit toward those that wrote them.

I guess I'm just flabbergasted at the badly written document.
Seems I find something new that should be clarified with each reading.

ElleN, D-S says "Email communications between board members are allowed, even if they discuss association business....where no action is taken....and discuss matters that may appear before the board." Our 40 year old documents are useless. They need RESTATING, along with a few updates. I'm not suggesting bypassing community input, nor avoiding 100% transparency. It's an overwheming event with many months of needed preparation and member education. We hold annual elections, so any delay could put this expensive $$$ task on the lap of new directors and go full circle, starting all over with input and education.

I agree. The 2023 appeals court said email communications where no action (vote) is taken do not qualify as a board meeting.

Subsequently the Ca Supreme Court said fine, and the legislators said fine.

The interested reader should see https://www.davis-stirling.com/HOME/E/Email-Between-Directors

My point is make it about their money
give them 2 months to vote
"harrass" them till they vote
multiple emails, texts, mailings, door knockings, etc

works every year for us.