"May" vs. "Shall" or "Must"

Started by SkuddleM • 4 replies • 2450 views

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SkuddleM (Colorado)
Posts: 62

Posted:

My HOAs bylaws states:

"These bylaws may be amended by a majority of a quorum of..."

Can this be taken to mean that the bylaws can also be amended by other means, or does the word "may" have some special legal significance??

Practical application: The BOD feels that it too can amend the bylaws and it needs no consent from any body to do so. It feels that had the authors of the bylaws intended that the only way to amend the bylaws was by a majority of a quorum, the phrase would read, "These bylaws may ONLY be..." or, "These bylaws SHALL be..."

(BTW, no other reference exists in the AOI or bylaws detailing the process by which they can be amended. Our CCRs, OTOH, state clearly how they (the CCRs) can be amended.)

MicheleD (Kentucky)
Posts: 4,491

Posted:

No, they are mistaken.

The requirements for amending are laid out.

The "may" simply means that the by-laws can be amended . . or not.

They are not MANDATED to be amended, which is what the word "shall" would mean.

Whatever follows after your ellipses is the only way they can be amended IF and WHEN they are to be amended.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

How can you perform the act of "not" doing something?

If the answer is "not" doing it, wouldn't you have to have an option that states you are "not" going to do it?

Just asking.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Quote:

Posted By SkuddleM on 01/15/2009 7:54 PM
My HOAs bylaws states:

"These bylaws may be amended by a majority of a quorum of..."

Can this be taken to mean that the bylaws can also be amended by other means, or does the word "may" have some special legal significance??

Practical application: The BOD feels that it too can amend the bylaws and it needs no consent from any body to do so. It feels that had the authors of the bylaws intended that the only way to amend the bylaws was by a majority of a quorum, the phrase would read, "These bylaws may ONLY be..." or, "These bylaws SHALL be..."

(BTW, no other reference exists in the AOI or bylaws detailing the process by which they can be amended. Our CCRs, OTOH, state clearly how they (the CCRs) can be amended.)

Skuddle,

Michelle is corrent! The word "may" only pertains to whether or not the bylaws can be amended it does not pertain to the method for amending.

BTW, It's not uncommon for the board to have the power to amend the bylaws w/o a vote of the membership. On the flip side, the CCRs can only be amended by a vote of the members. Your board is on the right track but not quite there in their interpretation of how the bylaws would be worded if the members were to vote on it. IMO, this is how it would read: "These bylaws may be amended by an affirmative vote of the members having not less than 75% of the votes entitled to be cast by the voting members." Note that it still says "may", because it is NOT a requirement that the bylaws be amended.

When reading your gov docs and state statutes, it should be noted that use of the word "may" means something can be done but it's not required to be done (the board has the option to make the determination; however use of the word "shall" means a certain action must be undertaken (the board cannot decide whether or not to do it).

SkuddleM (Colorado)
Posts: 62

Posted:

Hmmmm. When I learned English, the word "may" indicated a permissive state. But that was back in the dark ages (50s). Nowadays the language is twisted and distorted to mean whatever one wants it to mean at the time.

MW's New Collegiate Dictionary gives the primary definition of "may" as having power/permission to do something, and one of its secondary definitions is:

"5: SHALL, MUST--used in law where the sense, purpose, or policy requires this interpretation."

And that is what brought me to seek the opinions of others on this forum.

I did review the Colorado statutes regarding not-for-profit corporations and found where it states what BODs CANNOT change without membership approval.

Thank you all for your replies!

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