Most experienced bylaws analyst please!!!!

I am Secretary and I live with the President. We are officers. The treasurer has said that we are in violation of the bylaws and ccr's. All of a sudden she reveals herself. She has a personal grudge against our teamwork, and wants one of us to be removed. We have served together for almost 3 years and made progress the community has been proud of. We usually vote on the HOA decisions, but with more reading into the bylaws I found that maybe we should not vote( it's doesn't say whether we do or don't be it that we are officers). It just speaks on our specific duties. Since I quess we aren't board members or directors, the bylaws say that only directors transact business of the association. So we have 4 officers and 3 board members(or directors)??. I assume that it is saying that the 3 board members should vote only and make decisions for HOA not the officers because that makes sense to me. Otherwise it should say that the officers also vote because right now we are divided too much.

So since the bylaws state that 2 directors can't serve on the board from the same household at the same time and 1 vote per household. Aren't we in the clear if we are officers and we should not vote anyway? The goal is to continue serving and if not voting will make it legit we rather do it that way. As opposed to resigning completely.

Another question, do you have to be a member of your HOA to be Secretary?, President?, Treasurer?

Is everyone trying to tell me most certainly without a doubt that although we are officers, we are also directors too?
Yes would mean that we vote and I quess we would vote all the time. Which means that we both can't serve at the same time from the same household and at least one of us would have to resign.

Thanks to all that help; I am in distress; I enjoy working in the community, but I believe I may have to move on. I have researched alot; the Robert Rules of Order is confusing for me. The Georgia Law for Non-Profit Organizations was helpful some; since it prevails over all others. The bylaws for our community are too basic, because they don't state all obvious concerns that may arise.

Hi RicH1,

I've been reading your posts, and I think for anyone to be able to offer any type of info that you can actually use, you MUST post the exact wording of your By-Laws that deal with this issue.

Every association's governing documents are different, and without the exact language, I think most people would be guessing when they offered you any type of advice.

Plus, you have to consider your By-laws as they relate to the Articles of Incorporation (if you're incorporated). Just as an example, ALL of my association's governing documents (By-Laws, Articles, and CC&Rs) have language that discusses the roles/responsibilities/duties of directors and officers. Then, your documents would also have language about which document "wins" in the instance of a conflict within your governing documents.

I wish I could help, but without exact wording...

I had to make some edits.

I completely understand RicH saying the documents say "can't", but I have a hard time believing that's the exact language from his documents, you know what I mean? My governing documents *certainly* are NOT that casual with language. Also, he stated "The bylaws for our community are too basic, because they don't state all obvious concerns that may arise." If the bylaws are so basic, how come this provision is so specific?

But, like has been mentioned by several others, including some people who could ABSOLUTELY assist (with exact language from the documents), I guess RicH will continue to be in the dark.

I wonder who voted RicH and his spouse in to their respective "offices". I would find it VERY interesting if the President and Secretary were NOT directors on the board. If the membership voted him in to his office, I would guess he's a director, but if the Board appointed him to his office, then I would guess he's not a director. Of course, I've learned that all associations are their own entitites, what goes for one usually won't go for another! My guesses mean NOTHING...and that makes me sad.

As an aside, I don't know if I've ever used the word "guess" so many times...

Finally, RicH says "Is everyone trying to tell me most certainly without a doubt that although we are officers, we are also directors too?"

RicH - I don't think anyone is trying to tell you ANYTHING with any certainty. We CAN'T!!!! There's no certainty until exact wording is posted. Even then, there's no certainty anyway, probably, until a lawyer gets involved.

RicH,

I seem to recall you posting this same message a week or so ago. Right?

At any rate I will answer you again.

1) If you are not an owner of the property (your name is NOT on the deed) then it's likely you are not qualified to serve on the BOD. Check out your bylaws, it should be stated there whether or not board members must be members of the HOA.

2) Unless your bylaws state specifically that the officers are not members of the board, everyone who is elected as a board member is a director. Some of those directors also serve as officers (such as you and your Sec significant other). In other words, all officers are directors but not all directors are officers. ALL the board members are entitled to vote on all BOD actions.

3) Your bylaws state one vote per household, but that only applies to members voting. That does not apply to board members voting on board issues.

4) If your bylaws specifically state only one member of a household can serve on the BOD, then you and your SO cannot serve at the same time.

5) Regardless of the fact that your and your SO are doing such a great job, if only members can serve on the board and/or only one member per household can serve at the same time, then both of you are not eligible to be on the board at the same time. Bottom line: one of you has got to go and I would venture to say it's you because I doubt you will find that you are eligible to serve as a nonmember of the HOA.

I second that! Mine is very apathetic!

Ok...I can't get this one out of my mind... One MORE thing...

RicH, you posted some language, but could you post the "bylaw" where it discusses that one unit cannot have more than one BOD person? Did the Treasurer tell you this, or have you read this on your own in your governing documents?

RicH, by golly, we're actually getting closer!

Mary, since he states that the DIRECTORS CAN be spouses of members, it's really okay for him to be on the board. However, as he wrote, he and his wife cannot be on the board TOGETHER.

"The bylaws says the directors must reside in community and shall be members or spouses of such members; provided, however, no person and his or her spouse may serve on the board at the same time."

RicH, I'm guessing your community is doing what a lot of communities do that don't understand the difference between officer and director.

They think that by "electing" someone to the board, they must "elect" the President, secretary, treasurer, Vice President.

So out of habit or lack of knowledge, they vote the wrong thing.

The should be voting for directors. According to what you posted of your docs, at least 3 and up to 5.

And since the documents also describe the "duties" of the "officers," OUT OF THOSE 5 DIRECTORS, THE BOARD WILL SELECT/ELECT FOUR OFFICERS.

So. What does that give you?

This, after the homeowners vote on the board members:

First Director
Second Director
Third Director
Fourth Director
Fifth Director

And then the DIRECTORS will vote among themselves the officer positions; this means that four of the five directors will have specific DUTIES as described in your documents.

Now the board looks like THIS:

First Director/President
Second Director/Vice President
Third Director/Treasurer
Fourth Director/Secretary
Fifth Director/Member At Large

EACH board member has only ONE vote, regardless of what additional office or position he or she may hold.

Also, the section in your documents that refers to only ONE VOTE PER UNIT refers, as another poster said, to all the business that the HOMEOWNERS vote on, NOT the board business.

For example, the board would vote on things like which landscape company to select, whether to install a fence around a lake, what project management company to pick, etc.

The HOMEOWNERS vote on things like amendments to the governing documents, election of members to the board, etc.

Michele,

You posted a portion of his bylaws which say: "The bylaws says the directors must reside in community and shall be members or spouses of such members;". Note that it says the directors must be members. I seem to recall RicH stating he is not a member -- his SO owns the home. So, he cannot be a board member!

It's my understanding he is the spouse of the homeowner.

If he is not, then he cannot be on the board.

If he is then he can.

But, I'm not sure that we can piece together exactly what he is right now!

I'm wondering, and I don't mean this harshly, but I'm wondering if part of the problem might stem from whether or not English is his second or first language.

Does it matter if "common-law" marriage is recognized by the HOA? If it's recognized in his state (each state has different laws on this one), then doesn't the HOA have to recognize him as a spouse (entitled to all legal benefits of marriage, including being legally called a spouse)??

The answer provided by Nolo.com re: Common law marriage in GA:

Does Georgia have common-law marriage?
Yes. In Georgia, common law marriages that were created before January 1, 1997 are recognized. If you met Georgia’s criteria for common law marriage before January 1, 1997, then you are legally married and you will be treated as a married couple for legal purposes, including the requirement that you get a legal divorce in order to end your relationship. In order to have a valid common law marriage, a couple must have intended to be married, must have lived together for a significant period of time, and must have held themselves out as a married couple. If you need more information about common law marriage in Georgia, consult an attorney.

OK Tracie for a minute you almost answered my concerns. Now to everyone else's concerns: I speak very good English, born in the USA; I'm not stupid( as someone seemed to suggest and believe me I don't care what you all think about me); I'm not having a memory laspe either; Thanks to those who prefer to figure out what I said in my previous post than answer the questions, which you really don't have to answer. Everyone seems to overlook what I'm truly trying to understand. For those that think you have been clear or are repeating yourself, respond to this again if you like. Then show me where you answered this before because I don't believe you have(that would surprise me if you find it). Many of you keep changing what I'm asking.

Is an officer elected by **(HOA)** as secretary and /or president a director? Please don't flip the question, just answer yes or no. Even if they were director turned officer. What if they started out that way(as officer).

Next, when we have our meetings the pres. and secr., even vpres. vote on board decisions like landscaping, etc. this is what pissed the treas. off , because we all liked the landscaper and voted for him, except she didn't and wants to get rid of him. After nearly 3 years of us serving she reads or re-reads her bylaws; she researched the deed for our home and saw that I wasn't on the deed and assumed we were not married. She never asked us either,so she states that we can't serve on board at same time and it's only 1 vote perhousehold.

????????????Question is If we are officers like tracie begin saying, are we affected by the terms that are listed specifically for directors for whom the bylaws say have to be members? Not trying to find loop hole(to who ever used that term), just want to be sure before I give up and watch the community suffer as it used to. It doesen't say that officers have to be members. Am I wrong here???????????

More info; from my Bylaws

Article 1V

Officers of the association shall be a President, VP, Secretary, and Treasurer. Any two or more offices may be held by the same person, excepting the offices of President and Secretary. The President and Treasurer shall be elected from among the members of the Board of Directors. [Shall means can if you like or has to?] Remember we were just yelled or begged into this at an Annual meeting.

Election, Term of Office, ad Vacancies. -----The officers of the association shall be elected annually by the BOD at the first meeting of the Board of Directors following each annual meeting of the members. A vacancy in any office arising because of death, resignation, removal, or otherwise maybe filled by the BOD for the unexpired portion of term.

We once again were elected by homeowners

Who can remove us? BOD or HO

Did you remember my biggest concern; Are we officers or directors. Should officers vote on board decisions like landscapers, front entrance, etc. or directttttttttorrrrrrrrrrsssssssss? Are we doing it wrong. As for membership and voting rights I understand 1 vote per household, we will not vote but once at election time if it is ever done correctly. I continue to be confused with this section in the by laws, (directors must reside in comm. and shall be members or spouses of such members; provided, however, no person and his or her spouse may serve on the board at the same time).

Question again to make sure you understand me; We are officers elected by homeowners, so are we on the board as directors? does the above phrase in parenthesis apply to us(officers or board members/directors?

To mention again, we have 4 officers and 3 other people-board members? directors? bod?????????? a total of 7. Who votes on landscaping, expenditures, All of us. or just the 3 other people. If sec. and pres. don't then we want and maybe can continue what we do.

Also to someone that asked; again we are common law marriage of 13 years and georgia recognizes it but the treasurer has suggested that we aren't since I'm not on the deed; formally we aren't married, but informally by commonlaw we are, fyi. Also since when do you need to show your marriage certificate or

Once again somebody please clear it up for me please, dangggggg! I don't want to just quit. I swear if you clear this one up I will go away for sometime maybe 4 ever. I love it when you all copy and paste it insures me that we are addressing the same concerns.

I really do appreciate the help and support from everyone: I really do.

Must be the first time for me that I'm close to what someone is asking! Yaaayy Me!!!!

I'm kind of a stream of consciousness person, so please bear with me while I try to grasp the situation...

I'm not trying to twist around your question, but I think the method for electing/appointing "officers" is/should be defined in your articles. It is for my association. So, this is the way I understand MY association, with information from my governing documents. The "members/owners" (as defined by your documents) elect the Board of Directors. Subsequently, the Board of Directors *usually* APPOINTS the Officers to run the association. Maybe some confusion is coming in because you say you were elected as an Officer (asked to serve, appointed, elected...whatever) by the MEMBERS/OWNERS. I'm not used to hearing things done this way, unless it's a pretty casual association. It's actually the way we do things in mine, but I'm NOT recommending it, for exactly the problems you're encountering.

It appears to me that your home owners association violated the bylaws by allowing the members/owners to elect/appoint the officers.

About your Treasurer - From what I understand from your previous posts, and from the additional information in this post, there is NOTHING in your documents (Bylaws, Articles, OR CC&Rs) that indicate if an officer needs to be an "owner" or not. Also, from my previous post, you can see how I solved that problem... County Recorders Office, Quit/Quick Claim deed (or whatever it's called)... Of course, not knowing your personal relationship, I don't know if that would work for how you and your spouse care for your assets. But, if it would work, file it, move on.

I'd also like to clarify... So, you have three people who are elected by the membership who serve as the Board of Directors. Am I right so far? Then, in addition to those three people, you also have four "officers..."? Right so far again? For a total of 7 people responsible for the governance/enforcement of your association? Correct anything where I'm wrong, because this could be important. A lot of information is in the details.

So, run down the scenario for me... and answer a few questions.

How did your annual meeting go? Was it the "annual meeting of the members"? And, during the course of the meeting (when they elect), the membership/owners ELECTED the 3 Board positions? Then what? Then did those three board positions appoint the officers, or were the officers "elected/appointed" by the membership? Did the Board then have a Board meeting? Or did they just tack onto the annual meeting of the members?

So, after all that...I'm going to try to answer your questions

1. Who can recall you from your position?
Traditionally, if you were elected/appointed by the Board, then the Board and ONLY the Board can actually remove you. If you were elected/appointed by the membership, then the membership can remove you.

Now, are you an officer or a director, or both. It APPEARS that you are an officer only. Which could be problematic, especially since the offices of Pres and Treas are supposed to filled by BOD members.

An example... I'm an owner in our association. At the annual meeting of the members, I was elected to be on the Board. At the subsequent board meeting, the Board appointed me to be the President. I hold a Board position, and I'm also an officer. TWO DIFFERENT THINGS, which I think you understand...based on your extensive information above.

2. Should the officers (who are not BOD members) vote on Board business?
I'm pretty sure not. The officers are there for the day to day administration/running of the association, and also to put into practice the "vision" the board has for the association. So, I would "guess" that any business specifically reserved for the directors should not be voted on by those officers who are not also directors.

3. Is an officer also a board member/director?
Sometimes yes, sometimes no. Differences abound. You see in your bylaw that the offices of President and Treasurer must be elected from the Board. This is why I asked about the order the elections happened.

4. Are we affected by the terms that are listed specifically for directors for whom the bylaws say have to be members?
I would say no. Directors are directors, and officers are officers. Directors who are also officers would have to comply with those rules, as would officers who are also directors. But, why would an officer (who is NOT a director) have to comply with a rule for a director? Just makes no sense to me.

I really hope this helps! I'm really new here, too, and I get mind-boggled by the minutiae contained in the legalese. Sometimes people here help, because I take a closer look at my documents. Sometimes, unfortunately, people here focus on the wrong part of my questions, or they take it and lead it into an entirely different direction!

Also, I'm a SMALL association...only 19 units...in Colorado, the land of the casual. I'm the Property Manager, the President, and the Chair of the Board of Directors. I rarely know what I'm doing, as you can tell if you search my own posts!! Just take it one thing at a time...you'll get there!

Again...I WISH you and your spouse could move to Colorado (where we also have common law marriage (shoot, there are no time limits or anything!!!) and move to my neighborhood! I could use you, and I wouldn't quibble about common law!!!! Move here!!!

RicH,

Whether you choose to believe it or not, I know I have answered all your questions -- and many others have also -- not just once but several times. You posted several threads with different titles asking all these same questions at the beginning of the month. How many times do you need to ask a question and receive the answer?

Just one more time I will answer your questions, then I'm done!

1) The procedure for the majority of HOAs is that the members elect the directors. The directors, in turn, elect the officers from among themselves. Therefore, all board members are directors but not all directors are officers.

2) The "one vote per household" only applies to members voting. If there are 2 board members of the same household on the board, both can vote on board issues.

3) Since your bylaws state board members must be a member or spouse of a member, if a common-law partner is considered a "spouse" then you would be qualified to serve on the board.

4) Since your bylaws state only one member per household may serve on the board at one time, either you or your SO can serve, but not both of you.

5) If your common-law marriage was entered into prior to 1/1/97 then it is recognized by the State of GA. However, even if your common-law marriage is recognized by the State that does not mean you automatically are considered an owner of the property you reside in. Only if your name is on the deed are you a legal owner.

6) You bylaws should state the procedure to remove a board member. Generally speaking, if the members elect the directors then only the members can remove them. There may be some exceptions such as if the director is absent from so many board meetings or if he/she is delinquent or in violation of the CCRs for a certain number of month then he/she may be removed by the BOD. Since the officers are elected by their fellow board members they can be removed by the BOD.

7) In answer to your question: "Shall" means the same as "must". In other words if the bylaws say the BOD "shall" do something that means they must do it -- period. On the flip side, if it says they "may" do something, then it's up to them to decide whether or not they will do it.

By the way, IF your "HOA" elected you officers, that is sort of a moot point and a wasted event. The HOA can't elected officers, they can only elect board members (directors) and the directors are then the ones that elect the officers. The "shall" in that paragraph means that the board doesn't necessarily have to have officer position. In other words, having a director fill a president position is not mandated.

But as long as at least ONE DIRECTOR also "voted" in that election, or appointment, of you two as officers, you are both, indeed, the officers. You are ALSO DIRECTORS on the 7-member board of directors. So are the other two directors who hold the POSITION on the board of Treasurer and Vice President.