Power of the members

JeffT (Maryland)
Posts: 83

Posted:

What is the norm for members having the ability to enact policy or change and force the board to accept it. I am thinking something like a referendum. The usual stuff in the docs is that the members can vote to change the CC&R, Articles, By-Laws, and the board members. Then the board members make up the rules. But what if the members do not like or want to make a rule? Is there a norm for them to do this?

Since I am writing a draft for rules, polices, procedures, architectural controls,etc., I like that this would be a good time to state a way for the member to have some sort of input. Even though our by-laws state that the board makes all of the rules and can change them even at the dismay of the members.

I am thinking of some wording like "the board must take strong consideration of the wishes of the members" when adopting their rules or discounting input from the members. Might not mean much except putting the board on notice or reminding them that it is the members association and not theirs. It may help unify the two groups and the members may take more interest in the community if they felt that they had some input.

I think since we have several new board members who would like too see something like this we could adopt the words.

GeorgerwilliamsW (Indiana)
Posts: 975

Posted:

You have asked an interesting question. There is nothing in our documents that enables members through referendum to make or change rules. It is a responsibility delegated to the elected board only.

However, members can vote to amend the declaration of covenants without any involvement of the board of directors.

You might want to include in a policy document something to the effect that amending, adding or discontinuing a rule must be passed by a majority vote of the members of the board at two consecutive meetings of the board of directors. You might want to include a policy statement that any such proposals be published 30 days prior the initial vote.

Just some thinking.

I would like to see what kind of language others might suggest to deal with this situation.

JohnO6 (Georgia)
Posts: 424

Posted:

I agree with George, that it would be pretty rare for your governing documents to specify a percentage of members that could change a Board rule (as opposed to amending the governing documents themselves).

I think common sense should prevail here in that the Board should be sensitive to "hot topics" that result from rules they promulgate or propose to promulgate.

As most here are aware, the "noise level" usually is high volume from a comparatively small number of owners.

When we encountered such a situation from a small number of vocal owners about ARC rules beyond what was specifically noted in the covenants, we, as a Board, responded by taking our rules and subjecting them (each and every rule) to a survey vote by all owners. We used web based survey technology (and paper for those without internet access) and then distributed the compiled survey results. The Board acted on the survey results (based on a pre-specified percentage voting level) to change those rules that the community clearly wanted changed.

As a result, in over a year, we haven't received a single complaint about the rules, because everyone realizes that they had the opportunity to have their voice heard, AND the Board subsequently acted according to the wishes of the majority of the community.

SusanW1 (Michigan)
Posts: 5,202

Posted:

In our HOA, a bylaw amendment PROPOSAL must be submitted to the Board 60 days before the Annual Meeting. The Board investigates the legality, compatibility and feasibility of the PROPOSED bylaw, and then it IS placed on the agenda for the meeting for a vote of the Members. The Board can also give their "blessing" or register a recommendation of a No vote, but the residents pass bylaws. Of course there is ample time for "debate" at the motion of the bylaw.

P.S. In spite of all the hoopla, we have NEVER had a resident propose a bylaw.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Quote:

Posted By GeorgerwilliamsW on 09/18/2008 11:14 AM
You have asked an interesting question. There is nothing in our documents that enables members through referendum to make or change rules. It is a responsibility delegated to the elected board only.

However, members can vote to amend the declaration of covenants without any involvement of the board of directors.

You might want to include in a policy document something to the effect that amending, adding or discontinuing a rule must be passed by a majority vote of the members of the board at two consecutive meetings of the board of directors. You might want to include a policy statement that any such proposals be published 30 days prior the initial vote.

Just some thinking.

I would like to see what kind of language others might suggest to deal with this situation.

George,

You're the guy who doesn't like blanket statements and here you are making one by saying: "However, members can vote to amend the declaration of covenants without any involvement of the board of directors." My CCRs explicitly say the Pres or the V.P. must sign any amendment to the CCRs.

Regarding the board adopted rules I would suggest requiring a vote of the members. Since these rules have the same power as the CCRs restrictions I believe the member should have a vote on them. This is no different than having the right to review the CCRs b/4 purchasing your property.

SusanW1 (Michigan)
Posts: 5,202

Posted:

Jeff - you said:

Even though our by-laws state that the board makes all of the rules and can change them even at the dismay of the members.

Can you print it here, exactly?

That is very vague, plus it seems to give the ultimate authority to the Board.

GeorgerwilliamsW (Indiana)
Posts: 975

Posted:

Here you go again, Mary, quoting out of context. I wrote, "There is nothing in our documents that enables members through referendum to make or change rules. It is a responsibility delegated to the elected board only.

However, members can vote to amend the declaration of covenants without any involvement of the board of directors."

As you see, I was speaking of "our documents," not "your documents", not "their documents," and most certainly, not "documents in general." Our documents refers specifically to the documents that govern our homeowners association (i.e. the association that serves our neighborhood, not your neighborhood, not their neighborhood, not neighborhoods in general).

KirkW1 (Texas)
Posts: 1,665

Posted:

I would adopt similar wording to what our by-laws state about proposed budgets (and amended budgets). It states that we must notify the membership 30 days in advance at which time it will take affect. However, upon the petition of 10% of the residents a special membership meeting will be called at which time the membership can vote to reject the new budget.

Note, this is also similar to how many associations handle recall elections. The idea is to allow the Board to move unencumbered for the most part. But it allows the membership to step in when needed and correct the direction of the organization.

Sometimes a rule needs to be modified to cover something that was not earlier thought of. But you want to retain the right to call back the board if they go astray. As a note, 20% of our community makes a quorum. If quorum is not met, then a subsequent meeting can be called at 10%. Thus, it is possible that at the 10% rate you would have enough votes to effect the change. presumably some people who were not on the original petition will come to the meeting. And it would give the Board a chance to drum up support for their position.

MicheleD (Kentucky)
Posts: 4,491

Posted:

I don't understand why the rules would need to be "approved" by the membership. The membership already agreed to the CC&Rs (by accepting them on purchase of their home and voting to adopt any amendments thereafter.)

They are required to be informed of them per our governing documents, but since the rules cannot be contrary to the CC&Rs, they don't carry the same impetus of membership agreement as amendments do. Amendments MUST engage the residents, rules, CC&R interpretation and application do not have to.

Besides even without "rules," our CC&Rs give the board the ability to make binding decisions regarding areas in the governing docs that may be unclear or require clarification or interpretation and application.

"Section 7. Board's Determination Binding. In the event of any dispute or disagreement between any owners relating to the property subject to this Declaration, or any questions of interpretation or application of the provisions of this Declaration or the Bylaws, the determination thereof by the Board shall be final and binding on each and all such owners."

So the board's ability to make rules that interpret and apply provisions of the CC&Rs is supported by the CC&Rs. So to then create a "policy" or "procedure" to give that "authority" to majority membership seems contrary to the CC&Rs.

Certainly reaching out and getting "feedback" is a nice thing to do. But I don't think I would build it in as a requirement for rule formation, adoption, or changes.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Michele,

Whereas it's true we've agreed to the CCRs when purchasing our properties, we haven't agreed to the board-adopted rules. From what I've seen and read, in many instances it's those board adopted rules that cause many of the problems in HOAs, especially when you have a power hungry board. An example is the board in that town in TX that made a rule outlawing certain types of p/u trucks.

You've done a good job of citing all the articles which give the BOD the power to do this and do that, including the power to make a final decision regarding a dispute. This is what many people refer to as the "kangaroo court" and the absence of due process. What's wrong with the members have some authority over what governs their individual property? That's all we're talking about here. We're not suggesting the members have the authority to vote on all the decisions made by the board, or the authority to interpret the provisions of the CCRs, etc; only the right to vote on any additional rules they will be required to abide by. Now I know the process is cumbersome and in many instances it's very difficult to obtain the required number of votes; but perhaps that will give the board pause to really look at the rule they want to adopt. In fact, it might just cut down on all the "frivilous" rules some boards are bent on adopting.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Quote:

Posted By GeorgerwilliamsW on 09/18/2008 1:15 PM
Here you go again, Mary, quoting out of context. I wrote, "There is nothing in our documents that enables members through referendum to make or change rules. It is a responsibility delegated to the elected board only.

However, members can vote to amend the declaration of covenants without any involvement of the board of directors."

As you see, I was speaking of "our documents," not "your documents", not "their documents," and most certainly, not "documents in general." Our documents refers specifically to the documents that govern our homeowners association (i.e. the association that serves our neighborhood, not your neighborhood, not their neighborhood, not neighborhoods in general).

George,

Can you cite, vertabim, the CCR article which says the members have the right to amend the CCRs w/o any involvement of the BOD? I'm just curious to see how that is worded.

GloriaM (North Carolina)
Posts: 829

Posted:

George:

Why not take the first step and document a questionnaire for the membership, this way you can find out how they feel about issues. Your questionnairre can be as long or short as your needs are in the community.

From there once you have a good percentage of owners that participated you will know what most would like to see or be a part of. It's a great way of meeting your neighbors, knocking on the door and going over the form with them. You will hear lots of ideas, complaints that can help you in your quest.

MicheleD (Kentucky)
Posts: 4,491

Posted:

Quote:

Posted By MaryA1 on 09/18/2008 3:00 PM
Michele,

Whereas it's true we've agreed to the CCRs when purchasing our properties, we haven't agreed to the board-adopted rules. From what I've seen and read, in many instances it's those board adopted rules that cause many of the problems in HOAs, especially when you have a power hungry board. An example is the board in that town in TX that made a rule outlawing certain types of p/u trucks.

You've done a good job of citing all the articles which give the BOD the power to do this and do that, including the power to make a final decision regarding a dispute. This is what many people refer to as the "kangaroo court" and the absence of due process. What's wrong with the members have some authority over what governs their individual property? That's all we're talking about here. We're not suggesting the members have the authority to vote on all the decisions made by the board, or the authority to interpret the provisions of the CCRs, etc; only the right to vote on any additional rules they will be required to abide by. Now I know the process is cumbersome and in many instances it's very difficult to obtain the required number of votes; but perhaps that will give the board pause to really look at the rule they want to adopt. In fact, it might just cut down on all the "frivilous" rules some boards are bent on adopting.

But I disagree. There should be no "frivilous" rules as rules can only exist within the framework of the already adopted and accepted CC&Rs and by-laws.

If a rule is in conflict with the CC&Rs, then it can't be adopted, no matter how many board members agree to it, and, even one step further, it cannot be enforced.

So if the CC&Rs allow trucks, the board cannot enact a rule that bans specific brands. It would be an illegal rule and could not be legally enforced.

If the CC&Rs do NOT allow trucks, the board still cannot adopt a rule that allows SOME trucks and not others.

That, too, would be illegal within the framework of the documents and would be unenforceable.

KirkW1 (Texas)
Posts: 1,665

Posted:

Mary,

You have asked before so below I have included the section on amending our CCRs by the Class A membership. As you can see nothing is mentioned about the Board of Directors. As a note, our state also has specific laws about the amendment process and they make no mention of any power of a BOD to block an attempt.

Quote:

(b)By the Class "A" Members. Except as provided above and otherwise specifically provided in this Declaration, this Declaration may be amended only by the affirmative vote or written consent, or any combination thereof, of Neighborhood Representatives and/or Members representing at least fifty-one percent (51%) of the total Class "A" votes in the Association and the consent of the Class "B" Member, so long as the Class "B" Member owns any property subject to this Declaration or which may become subject to this Declaration in accordance with Section 2.1(a).

Notwithstanding the above, the percentage of votes necessary to amend a specific clause shall not be less than the prescribed percentage of affirmative votes required for action to be taken under that clause. To be effective, any amendment must be recorded in the County Clerk Official Records of Dallas County, Texas. Any procedural challenge to an amendment must be made within six (6) months of its recordation or such amendment shall be presumed to have been validly adopted.

If an Owner consents to any amendment to this Declaration or the Bylaws, it will be conclusively presumed that such Owner has the authority so to consent and no contrary provision in any Mortgage or contract between the Owner and a third party will affect the validity of such amendment.

No amendment may remove, revoke or modify any right or privilege of Declarant or the Class "B" Member without the written consent of Declarant or such Class "B" Member, respectively (or the assignee of such right or privilege).

MaryA1 (Arizona)
Posts: 7,043

Posted:

Quote:

Posted By KirkW1 on 09/18/2008 8:11 PM
Mary,

You have asked before so below I have included the section on amending our CCRs by the Class A membership. As you can see nothing is mentioned about the Board of Directors. As a note, our state also has specific laws about the amendment process and they make no mention of any power of a BOD to block an attempt.

(b)By the Class "A" Members. Except as provided above and otherwise specifically provided in this Declaration, this Declaration may be amended only by the affirmative vote or written consent, or any combination thereof, of Neighborhood Representatives and/or Members representing at least fifty-one percent (51%) of the total Class "A" votes in the Association and the consent of the Class "B" Member, so long as the Class "B" Member owns any property subject to this Declaration or which may become subject to this Declaration in accordance with Section 2.1(a).

Notwithstanding the above, the percentage of votes necessary to amend a specific clause shall not be less than the prescribed percentage of affirmative votes required for action to be taken under that clause. To be effective, any amendment must be recorded in the County Clerk Official Records of Dallas County, Texas. Any procedural challenge to an amendment must be made within six (6) months of its recordation or such amendment shall be presumed to have been validly adopted.

If an Owner consents to any amendment to this Declaration or the Bylaws, it will be conclusively presumed that such Owner has the authority so to consent and no contrary provision in any Mortgage or contract between the Owner and a third party will affect the validity of such amendment.

No amendment may remove, revoke or modify any right or privilege of Declarant or the Class "B" Member without the written consent of Declarant or such Class "B" Member, respectively (or the assignee of such right or privilege).

Kirk,
Correct me if I'm wrong, but haven't you said on occasion that the whole document must be read in order to make sense of a particular article? Where in your declaration or bylaws are the powers of the members outlined? Doesn't your declaration or bylaws give the board the ". . .power and duties necessary for the administration of the affairs of the assn and may do all such acts and things as are not by law or otherwise expressly directed to be exercised and done exclusively by the members." (from my bylaws) Isn't the Pres. the individual authorized to ". . .sign all notes, leases mortgages, deeds, contracts and OTHER WRITTEN INSTRUMENTS on behalf of the assn. . ."? Doesn't an amendment to the CCRs have to be signed to be valid? (My CCRs state the Pres or the V.P. must sign the admendment.) Isn't the Pres. designated as the ". . .chief executive officer of the assn. . .he shall preside at all meetings of the MEMBERS and of the BOD. . ."? I don't know about yours, but my docs do NOT give any of these powers to the members. I don't know how the members could amend the CCRs w/o any board involvement and be in compliance with the gov. docs. Even the article you quote only addresses the fact that they must vote to approve an amendment to the CCRs.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Quote:

Posted By MicheleD on 09/18/2008 3:49 PM

But I disagree. There should be no "frivilous" rules as rules can only exist within the framework of the already adopted and accepted CC&Rs and by-laws.

If a rule is in conflict with the CC&Rs, then it can't be adopted, no matter how many board members agree to it, and, even one step further, it cannot be enforced.

So if the CC&Rs allow trucks, the board cannot enact a rule that bans specific brands. It would be an illegal rule and could not be legally enforced.

If the CC&Rs do NOT allow trucks, the board still cannot adopt a rule that allows SOME trucks and not others.

That, too, would be illegal within the framework of the documents and would be unenforceable.

Michele,

I agree there should be no "frivilous" rules, but tell that to all the errant boards out there adopting them! We read about them all the time. But, frankly, whether frivilous or not, these are rules that the members did NOT agree to when purchasing their property. That is my point. If we had the right to agree to the rules contained in the CCRs b/4 purchasing then we should have the right to at least vote on any subsequent rules we have to abide by. By rules I mean only those rules that pertain to property use.

JohnO6 (Georgia)
Posts: 424

Posted:

Mary - I respectfully disagree. If the governing documents you did agree to upon purchasing included the right of the Board to unilaterally make rules, then in effect (and in law) you agreed to the Board's ability to do that without owner votes.

SusanW1 (Michigan)
Posts: 5,202

Posted:

Still waiting for Jeff to post his EXACT wording . . .

JohnO6 (Georgia)
Posts: 424

Posted:

Susan - exactly why my sentence started with "If the governing documents .. .. "

JeffT (Maryland)
Posts: 83

Posted:

SusanW1

Here is the the phrase that give the BOD powers to make rules. I posted on another thread to inquire about the interpretation of it:

Under Powers and Duties of the Board of Directors
2004 Amended to:
"Adopt and publish rules and regulations governing the use of the common areas, recreational facilities, and the Lots and the personal conduct of the members and their families members and guests thereon, and to establish reasonable penalties for the infraction of said rules and regulations, the declaration and these by-laws, including the imposition of monetary fines which, once imposed, shall become a continuing lien upon the Lot and shall be collectible in the same manner as an assessment."

Amended from:
"Adopt and publish rules and regulations governing the use of the common areas, recreational facilities, and the Lots and the personal conduct of the members and their guests thereon, and to establish penalties for the infraction thereof."

There is nothing in any BY-LAW or CC&R about members voting or approving any decision that the BOD make make on the rules, budget, affairs, actions, etc.

The only restriction is that the BOD can not raise the annual assessment more than 10% or make a special assement without a 75% agreement of all members. The only other input given to the members is voting to change the Articles, by-laws, CC&R, the BOD, nominate canidates for the BOD, and request some documentation at meetings.

SusanW1 (Michigan)
Posts: 5,202

Posted:

Jeff - first of all there is ONLY the current bylaws, no amended ones, previous ones - just current ones. So what was in the past in the bylaws has nothing to do with the next day, after adopttion.

Your bylaws simply says that the board is authorized to make rules and to levy fines. That's pretty boilerplate. The powers must be stated in the bylaws.

BUT >>>> IN GENERAL, motions are made to amend and recind governing documents. So if a rule is made by the board, the membership can amend it or recind it at THEIR meeting.

Look in your bylaws under "Amending this document" or Amendments, or some other section that talks about amending your documents and who has the power to do it.

MicheleD (Kentucky)
Posts: 4,491

Posted:

Quote:

Posted By JohnO6 on 09/19/2008 5:14 AM
Mary - I respectfully disagree. If the governing documents you did agree to upon purchasing included the right of the Board to unilaterally make rules, then in effect (and in law) you agreed to the Board's ability to do that without owner votes.

Yes, that is what I'm trying to articulate.

I totally agree, Mary, that there are less-than-honest boards and that we have seen places where rules are made that definitely exceed the bounds of the board's authority to make.

But I'm still not keen on a shotgun approach (wide-target, scattershot) when a more direct and case-by-case target approach should be used.

In cases where there is a rogue board, it's more than likely that badly created rules & regulations are produced. But then, it is also likely that there are probably a lot more inappropriate things going on, as well. That is where the membership must step forward and assert their position in the association.

I think too often homeowners equate their role in an HOA as simply passive. That they think they have no power within the association other than to take whatever a board dishes out. That the board members are of some "higher" level on the food chain, instead of just being stewards of the governing documents.

I'm grateful that in my community our metro government conducts Neighborhood Leadership training workshops and seminars to help educate neighborhood leaders and board members regarding their responsibilities, roles and authorities within the various neighborhood constructs.

I wish that the metro government would also sponsor and conduct Neighborhood Living training and workshops geared to the average homeowner so that residents could attend in order that they, too, could better understand their roles, responsibilities and authorities within a neighborhood organization.

I might propose that at one of our next workshops.

JeffT (Maryland)
Posts: 83

Posted:

SusanW1

I stated all the references in all docs where the members have any input. Unless there is an unstated rule or a law of some sort that is all I can find.

BTW: I only put the pre-amended version in just to show what they changed. It was for the purpose of of giving the BOD the power to write rules governing what a member can do on and to their Lot. Everything thing else in all docs deals with common areas and annual assessments. The Architectural Control only stated the the owners had to get pre-approval form the BOD to make a change to the exterior of the structure. Nothing about maintaining any appearance of anything.

MicheleD (Kentucky)
Posts: 4,491

Posted:

Quote:

Posted By JeffT on 09/19/2008 5:50 AM
SusanW1

The only other input given to the members is voting to change the Articles, by-laws, CC&R, the BOD, nominate canidates for the BOD, and request some documentation at meetings.

Susan: Isn't this what you are looking for?

Jeff, what is the actual verbiage of this section?

This is where the MEMBERS have the ability to AMEND the CC&Rs specifically.

In other words, if your CC&Rs say that there are NO SIGNS ALLOWED, your membership can, by virtue of this area AMEND the CC&Rs to ALLOW for signs, and whatever RULES the board created regarding Signs is then void.

JeffT (Maryland)
Posts: 83

Posted:

There is wording that spells that how members can change the Articles.by-laws, and CC&R. No where does it say that the board has to present anything to the members for votes on anything that they have the power to do.

Here
2004 by-law amendments
http://jefftitus.powweb.com/Broadfield_2004_Amendments.pdf

Articles, by-laws, CC&R
http://jefftitus.powweb.com/Broadfield Declaration.pdf

MaryA1 (Arizona)
Posts: 7,043

Posted:

Quote:

Posted By JohnO6 on 09/19/2008 5:14 AM
Mary - I respectfully disagree. If the governing documents you did agree to upon purchasing included the right of the Board to unilaterally make rules, then in effect (and in law) you agreed to the Board's ability to do that without owner votes.

John,

So what! That doesn't mean it can't be changed. That's why there's a provision in the CCRs for amendments!!! Amending to the CCRs means changing something that was agreed to when you purchased your property, right?

MaryA1 (Arizona)
Posts: 7,043

Posted:

Quote:

Posted By MicheleD on 09/19/2008 6:57 AM

Posted By JohnO6 on 09/19/2008 5:14 AM
Mary - I respectfully disagree. If the governing documents you did agree to upon purchasing included the right of the Board to unilaterally make rules, then in effect (and in law) you agreed to the Board's ability to do that without owner votes.

Yes, that is what I'm trying to articulate.

I totally agree, Mary, that there are less-than-honest boards and that we have seen places where rules are made that definitely exceed the bounds of the board's authority to make.

But I'm still not keen on a shotgun approach (wide-target, scattershot) when a more direct and case-by-case target approach should be used.

In cases where there is a rogue board, it's more than likely that badly created rules & regulations are produced. But then, it is also likely that there are probably a lot more inappropriate things going on, as well. That is where the membership must step forward and assert their position in the association.

I think too often homeowners equate their role in an HOA as simply passive. That they think they have no power within the association other than to take whatever a board dishes out. That the board members are of some "higher" level on the food chain, instead of just being stewards of the governing documents.

I'm grateful that in my community our metro government conducts Neighborhood Leadership training workshops and seminars to help educate neighborhood leaders and board members regarding their responsibilities, roles and authorities within the various neighborhood constructs.

I wish that the metro government would also sponsor and conduct Neighborhood Living training and workshops geared to the average homeowner so that residents could attend in order that they, too, could better understand their roles, responsibilities and authorities within a neighborhood organization.

I might propose that at one of our next workshops.

Michele,

As I said to John, so what? That's why there's a provision for amending the CCRs. Isn't an amendment changing something the members agreed to when purchasing their property?

I'm not a fan for more government, but sometimes there is a need for a certain law. BTW, most laws are passed for the people who are "less than honest"! People like you and I don't need laws to tell us how to do things the "right way"!

Why not just ask your metro gov to open up the Neighborhood Leadership training workshops and seminars to anyone living in an HOA, not just board members. That's what we do here in the Phx area -- anyone can attend. I agree that the members also need the education, whether or not they ever plan to run for a board position.

JohnK3 (Pennsylvania)
Posts: 967

Posted:

I'm all for Membership being informed, and seeking Membership input, but if Boards are elected to, among other things, enact and enforce rules, Membership ought to accept that UNLESS the rules are way, way out of line with collective Membership thought.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Quote:

Posted By JohnK3 on 09/19/2008 9:56 AM
I'm all for Membership being informed, and seeking Membership input, but if Boards are elected to, among other things, enact and enforce rules, Membership ought to accept that UNLESS the rules are way, way out of line with collective Membership thought.

John,

And what do you propose the members do if the rules are ". . .way out of line with collective membership thought."? In most instances the board has the right to adopt these rules w/o input or a vote of the members.

JohnK3 (Pennsylvania)
Posts: 967

Posted:

Mary,

If Membership is p-oed enough about a rule, it could:

1. Amend the docs to allow them to override a Board rule then do so, or;
2. Get enough firm votes and inform the Board that unless the Board changes the rule to suit their tastes, Membership will vote to recall/eliminate any non-cooperative Board members.

Of course, #1 would require a pretty high % of Membership participation, which is, I think you'd agree, always tough to garner. Same for #2, with the added twist that...omigod!...some of them would have to volunteer to replace the oustees.

MicheleD (Kentucky)
Posts: 4,491

Posted:

Mary,

The Neighborhood Training IS available to ANYONE in the community at a pretty nominal fee: $5 per workshop.

But the marketing is directed to Neighborhood Leaders.

And the perspective of the workshop is from the leadership perspective.

But there really hasn't been a "track" for residents in deed-restricted communities and I would suggest to the Metro Government that they look into producing one.

In the last workshop I attended there were 40 participants.

Of those 40, almost half were non-neighborhood leaders.

But back to your comment on the CC&Rs, I still disagree with your position, so we are going to have to continue to disagree.

I feel that the governing documents offer the protection needed for the board to make rules without having to get them passed by the residents (at least in my HOA and many like mine) and I see no reason to have that change. If the board makes rules that are counter to the CC&Rs, then the Rule is basically void and unenforceable.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Michele,

I certainly do understand your point of view. You are a conscientious board member! As I said, "most laws are passed for the people who are "less than honest"! People like you and I don't need laws to tell us how to do things the "right way"!"

Frankly, I don't have a problem with board-adopted rules per se; just board-adopted rules that affect property rights. Those I believe should require a vote of the members.

You're right; we'll have to agree to disagree on this one. It's been an interesting discussion. :-)

GlenL (Ohio)
Posts: 5,491

Posted:

Our documents do specify a H/O vote on the rules and regulations:

Rules and Regulations. The Association, by vote of the members entitled to exercise a majority of the voting power of the Association, may adopt such reasonable rules and regulations and from time to time amend the same, supplementing the rules and regulations set forth in the Declaration and these By-Laws as it may deem advisable for the maintenance, conservation and beautification of the Condominium Property, and for the health, comfort, safety and general welfare of the owners and occupants of the Condominium Property. Written notice of such rules and regulations shall he given to all owners and occupants and the Condominium Property shall at all times he maintained subject to such rules and regulations. In the event such supplemental rules and regulations shall conflict with any provisions of the Declaration or these By-Laws, the rules and regulations of the Declaration and of these By-Laws shall govern.

The rules and regulations may regulate the use or occupancy of Units; regulate the maintenance, repair, replacement, modification, and appearance of Units, Common Elements, and Limited Common Elements when the actions regulated by the rules affect Common Elements or other Units; adopt standards governing the type and nature of information and documents that are subject to examination and copying by Unit Owners, including the times and locations at which items may be examined or copied and any required fee for copying the information or documents; and regulate the collection of delinquent assessments and the application of payments of delinquent assessments.

Studies show that 5 out of 4 people have problems with fractions

GlenL (Ohio)
Posts: 5,491

Posted:

In California homeowners can void a rule enacted by the BOD. Jeff this might by the sort of thing you were looking for.

Civil Code §1357.140. Member Veto of Rule Changes

(a) Members of an association owning 5 percent or more of the separate interests may call a special meeting of the members to reverse a rule change.

(b) A special meeting of the members may be called by delivering a written request to the president or secretary of the board of directors, after which the board shall deliver notice of the meeting to the association's members and hold the meeting in conformity with Section 7511 of the Corporations Code. The written request may not be delivered more than 30 days after the members of the association are notified of the rule change. Members are deemed to have been notified of a rule change on delivery of notice of the rule change, or on enforcement of the resulting rule, whichever is sooner. For the purposes of Section 8330 of the Corporations Code, collection of signatures to call a special meeting under this section is a purpose reasonably related to the interests of the members of the association. A member request to copy or inspect the membership list solely for that purpose may not be denied on the grounds that the purpose is not reasonably related to the member's interests as a member.

(c) The rule change may be reversed by the affirmative vote of a majority of the votes represented and voting at a duly held meeting at which a quorum is present (which affirmative votes also constitute a majority of the required quorum), or if the declaration or bylaws require a greater proportion, by the affirmative vote or written ballot of the proportion required. In lieu of calling the meeting described in this section, the board may distribute a written ballot to every member of the association in conformity with the requirements of Section 7513 of the Corporations Code.

(d) Unless otherwise provided in the declaration or bylaws, for the purposes of this section, a member may cast one vote per separate interest owned.

(e) A meeting called under this section is governed by Chapter 5 (commencing with Section 7510) of Part 3 of Division 2 of Title 1 of, and Sections 7612 and 7613 of, the Corporations Code.

(f) A rule change reversed under this section may not be readopted for one year after the date of the meeting reversing the rule change. Nothing in this section precludes the board of directors from adopting a different rule on the same subject as the rule change that has been reversed.

(g) As soon as possible after the close of voting, but not more than 15 days after the close of voting, the board of directors shall provide notice of the results of a member vote held pursuant to this section to every association member. Delivery of notice under this subdivision is subject to Section 1350.7.

(h) This section does not apply to an emergency rule change made under subdivision (d) of Section 1357.130.

Studies show that 5 out of 4 people have problems with fractions

MaryA1 (Arizona)
Posts: 7,043

Posted:

Glen,

Thx for the info -- I like your docs!! Has this requirement ever posed a hardship on the board?

GlenL (Ohio)
Posts: 5,491

Posted:

Mary, I've been here eight years and I don't recall any proposed measure failing.

Studies show that 5 out of 4 people have problems with fractions

DonN (Michigan)
Posts: 357

Posted:

An owners association is an organization of members. Typically, only the members can approve amendments the bylaws (rules for governance). And only the owners, who are mandatory members in the association, can approve amendments to the CC&Rs.

But the owners have other powers that are typically defined in the bylaws and in state law — to petition for the calling of a special members' meeting with a defined purpose. With a sufficient number of petitioners, the meeting must be called for the named subjects and only those subjects. The board has no authority to even tinker with the meeting. Even in my state of Michigan, the nonprofit corporation act which was last revised in 1982, contains such a provision. Moreover, it also contains a provision that the calling of the special members' meeting will be enforced by the circuit court.

Typically neither the bylaws nor the state law limit the subject matter for a petition of the members. So the members can certainly make voting to overrule a board action a subject matter. Members have much power; they typically don't exercise it.

Your bylaws may also contain a provision to allow members to place motions on the agenda for the annual meeting. The annual meeting is a meeting of the members, not show and tell by the board.

I suggest that those concerned about the power of the members check their bylaws and the applicable state law.

=============
Comments on Several Posts.

MicheleD — What you quoted in your 09/18/2008 1:37 PM post from your governing documents is an invitation for abuse. Your Section 7 provides no criteria or rules for interpretation. The governing documents are contracts and are matters of law for the courts to determine. Your Section 7 is an example of the power that developer's have to impose such provisions. I would be very surprised if any such a provision exists for a town council in the laws for all 50 states. MaryA1 explains further in her 09/18/2008 1:00 PM post.

MaryA1 — In the ideal world, boards will respect the governing documents, and understand the members' interests before acting. But inevitably, a board wants to stretch its authority and will make self-serving interpretations. Accordingly, it is best that the governing documents clearly define the limits of authority of the board. If it is appropriate for the board to have more authority, then amend the appropriate document. Open-ended authorities for the board are invitations to abuse.

Don Nordeen
Governance of Property Owners Associations

MicheleD (Kentucky)
Posts: 4,491

Posted:

Quote:

Posted By DonN on 09/21/2008 11:36 AM

Comments on Several Posts.

MicheleD — What you quoted in your 09/18/2008 1:37 PM post from your governing documents is an invitation for abuse. Your Section 7 provides no criteria or rules for interpretation. The governing documents are contracts and are matters of law for the courts to determine. Your Section 7 is an example of the power that developer's have to impose such provisions. I would be very surprised if any such a provision exists for a town council in the laws for all 50 states. MaryA1 explains further in her 09/18/2008 1:00 PM post.

And I respectfully disagree.

Since we cannot on our own authority alter ANY of the CC&Rs, that is the "authority" for restricting the rules and regulations to only those that are on concert with the CC&Rs.

If a Rule violates any of the CC&Rs, it is unenforceable.

DonN (Michigan)
Posts: 357

Posted:

MicheleD

What do you do if the board issues a rule that you believe violates the CC&Rs and the board states that, in its authority for interpretation, the rule does not? That is bound to happen, particularly if the owner(s) involved are giving the board a bad time about the issue.

There are many posts on HOA Talk that fit this description. You may be fortunate that it hasn't happened at your association ——— yet!

Don Nordeen
Governance of Property Owners Associations

MicheleD (Kentucky)
Posts: 4,491

Posted:

That's such a silly hypothetical.

If it's open to interpretation, then the board has the right to make that interpretation.

A board can't "interpret" a restriction that says "only in-ground pools are allowed," to then make a rule and say that above-ground pools are allowed.

It can't "interpret" a restriction that says "no trucks allowed unless parked in a garage," and then make a RULE that says pickup trucks are allowed.

It can't "interpret" a restriction that says "no chain link fences allowed," and then make a rule that says that chain link fences that are painted black are allowed.

If the "interpretation" is in a gray area, that is not clear in the CC&Rs, or is ambiguous, then you are right, they can pretty much stretch some things. But that a a considerable distance from make rules that are CONTRARY to the CC&Rs, especially when the CC&Rs clearly restrict or prohibit what the rule is covering.

It may TRY to make those rules, but they would be unenforceable when challenged.

So I still respectfully disagree.

KirkW1 (Texas)
Posts: 1,665

Posted:

Michelle,

I will just say that I believe your situation is ripe for abuse. I know you don't believe a Board can interpret something in black and white such as "no chain link fences." But they can and have done such things. They often fall back to other places allowing for discretion and state this is a discretion.

The simple fact is that if everyone treated everyone else correctly there wouldn't be nearly as many lawyers in the business and the court system would be much smaller.