Can Board Members Amend the number of proxies needed to elect Board Members?

Started by JuanH • 13 replies • 1567 views

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JuanH (Texas)
Posts: 6

Posted:

I am confused. We had our annual election and we were short of proxies needed to meet our quorum for electing two new Board Members. Our Management Co. says the Board can make an amendment to reduce the amount of proxies needed to elect the Board Members.
Our Article Nine states that the By-Laws of The Association may be amended at any time by the Board of Directors
Article Ten says this: the Association reserves the right to amend or repeal any provision of these Articles in the manner now or hereafter prescribed by law, however, any amendment of these articles must be approved by two-thirds vote of each class of the members of the Association who are voting, in person or by proxy, at a meeting duly called for such purpose.
Can the Board make this amendment? or Homeowners have to vote to approve it?

GlenL (Ohio)
Posts: 5,491

Posted:

If the quorum requirement is in the By-Laws, then yes it appears that the Board has the power to amend it.

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

JeanneK3 (Maryland)
Posts: 562

Posted:

I read it as saying you need a special meeting of the homeowners and 2/3 of the homeowners must approve the proposed amendment.

MicheleD (Kentucky)
Posts: 4,491

Posted:

It depends on which document addresses the item being amended.

If the defined quorum is in the By-laws then the board can change it (make an amendment to the By-laws).

If the quorum designation is in the Deed Conditions, Covenants and Restrictions, then the other requirement (2/3s).

MaryA1 (Arizona)
Posts: 7,043

Posted:

Quote:

Posted By JuanH on 01/14/2009 8:21 PM
I am confused. We had our annual election and we were short of proxies needed to meet our quorum for electing two new Board Members. Our Management Co. says the Board can make an amendment to reduce the amount of proxies needed to elect the Board Members.
Our Article Nine states that the By-Laws of The Association may be amended at any time by the Board of Directors
Article Ten says this: the Association reserves the right to amend or repeal any provision of these Articles in the manner now or hereafter prescribed by law, however, any amendment of these articles must be approved by two-thirds vote of each class of the members of the Association who are voting, in person or by proxy, at a meeting duly called for such purpose.
Can the Board make this amendment? or Homeowners have to vote to approve it?

Juan,

Did you perhaps post Article Nine of the bylaws and Article Ten of the CCRs? These are two separate documents and each describes the procedure to amend that particular document. Since the bylaws say they can be amended by the BOD your manager was not out of line by making that statement. However, the board must vote on the amendment -- did they do that at the meeting? If not, then the bylaws were not amended b/4 the meeting and since a quorum was not reached the meeting should have been cancelled. The board cannot just say, well the bylaws have been amended.

SusanW1 (Michigan)
Posts: 5,202

Posted:

Juan = Bylaws and Articles are not the same thing.
It looks like your Board can amend bylaws. If the quorum requirment is listed in the bylaws, then they can be changed by the board.

Although, IMHO, that gives a lot of power to the Board.

JuanH (Texas)
Posts: 6

Posted:

The quorum requirement is stated in the By-Laws. Articles 9&10 got them from Articles of Incorporatiion.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Quote:

Posted By JuanH on 01/18/2009 7:14 AM
The quorum requirement is stated in the By-Laws. Articles 9&10 got them from Articles of Incorporatiion.

Juan,

Sorry, but I'm still confused. Here's what you posted:

"Our Article Nine states that the By-Laws of The Association may be amended at any time by the Board of Directors"

"Article Ten says this: the Association reserves the right to amend or repeal any provision of these Articles in the manner now or hereafter prescribed by law, however, any amendment of these articles must be approved by two-thirds vote of each class of the members of the Association who are voting, in person or by proxy, at a meeting duly called for such purpose."

Please indicate where each article comes from: CCRs (declaration), bylaws, articles of inc.

JuanH (Texas)
Posts: 6

Posted:

I got Article Nine and Ten from Articles of Incorporation. I read the documents more and the quorum requirements is stated in our By-Laws. The CCRs does not say anything about the quorum requirements for voting BOD but it does say the requirements for increasing annual asssesment more than 10% of for special assesments. We did not amend the By-Laws that night because I wanted to make sure the Board got power to make that amendment. We hate to decrease the proxies needed to elect a BOD becuase we want all members to be involved with Association but it is hard to get them to participate.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Juan,

That's interesting because the Article 9 & 10 that you posted is contradictory! However, if the quorum requirement is in the bylaws then you have to look at the amendment provision of the bylaws because that is the document that must be amended if you want to change the quorum requirement. If the bylaw amendment article says the board may amend w/o a vote of the members then that is how its done. While it's nice that the board would like to see a high participation of members, if they don't want to participate then the board may not have any choice but to lower the quorum requirement, otherwise you will be unable to hold the annual meeting. Sometimes you just can't have it both ways! :-(

JuanH (Texas)
Posts: 6

Posted:

That is why I said at the beginning I was confused. Aricle 9 and 10 contradict each other unless article 10 is relating to the Articles of Incorportion.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Juan,

You said they both came from the Articles of Inc; so they both pertain to that document. Each gov. doc. should have an article stating how it is to be amended, i.e., the bylaws are only concerned with amending the bylaws, etc., etc.

JuanH (Texas)
Posts: 6

Posted:

Mary,

Thank to you and everybody else who posted their comments to my question, We know what to do now and in the future if this issues come out again. Thanks.

JuanH (Texas)
Posts: 6

Posted:

Both of them came from Articles of Inc.

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