Articles of Incorp. vs Bylaws

When state statues say the articles of incorporation OR bylaws may provide for staggering of the directors' terms, do the articles have to specify it before you can put it in the bylaws since the articles take precedence over bylaws?

I kind of figured that too, but the law is so ambiguous. Thanks.

Thanks very much. I am assuming then, that the bylaws can be changed at any time by the board to include this option even if the option has not been in any of the previous bylaws.

Right, Mary.

Our By-laws require the same approval process, and authority, as our CC&Rs, which is to say both require 51% of those association members eligible to vote to pass and/or amend.

Our board cannot change/amend the By-laws on its own.

I guess I should have said....does this mean we can't amend the bylaws to incorporate staggered terms?

Margaret,
In my experience rewritting a set of documents, the Articles of Inc should contain how the Board numbers and term limints and percentage of votes for elections, etc. Then the Bylaws are a more explicit set of how to's for elections, term limits, etc. So in other words, to add to the bylaws, you will need to address the Articles as well. As long as you are getting a vote out for one item, it is totally easy to have them both done at the same time.

Thanks, Donna. Great idea.

Margaret,

If your articles do not address how the board is elected and do not say anything about staggered terms then the bylaws do not need to reference the articles. The only time ref to the articles would be made is if whatever is being addressed is mentioned in the articles. Here is a summary of what the articles and the bylaws generally contain. Of course the developer can put whatever he chooses into either document, so it will vary from assn to assn but what you will read below is the generally accepted listing:

Articles of Inc.:
Corporate name; name of the incorporator; whether it is a stock or non-stock corp; the purpose of the corp; if a nonstock corp whether it is for profit or nonprofit; the number and names of the initial board of directors; the name of the registered agent; the location of the corp's registered office.

Generally the articles to not go into great detail about the corp's operations.

Bylaws:
How directors are elected; how meetings of directors are conducted; how meetings of members are conducted; what officers the organization will have and a description of their duties; how elections shall be held; how meetings of the members are conducted; how elections are conducted; what the powers and duties of the BOD are.

The bylaws generally contain the most fundamental principles and rules regarding the nature of the org. In most states, the org. does not formally exist until the bylaws have been adopted.

You started by discussing your Corporate Articles and Bylaws, then you mentioned your Declarations here, and then we went back to your Articles and Bylaws. There are three documents, not two. Generally, the procedures in question are specified in the Bylaws, but could you also post anything from your CC&Rs and your Articles that might conflict with or restrict your Bylaws. If you have softcopy and don't need to keep them confidential, you could append them as attachments to a post.

Donna, I found Mary's comment to be accurate in that the Articles do require a significant number of the unit owners approval to amend.

I think we all make generalized statements based on our experience. For example you stated "ALL require the same percentage of a members vote to change the CC&Rs, the Articles and the BYlaws.If one requires 2/3rds, all parts require 2/3rds to change by a vote of the members." This is not correct. Each document should state what is required to amend that document and the CC&R's requirement may have been modified by a later State statute (such as in Colorado). For example, the members (not the owners) can amend the Bylaws and it may take considerably less (such as 2/3 of those members present at a meeting) than the CC&Rs and the Articles (which will require, at a minimum, over 50% of all owners).

Thank You Roger for the correction. My experience with our Florida documents all use the same percentages so I based my statement on that. I forget that every State has unique ways of rules and laws for HOAs.

Margaret, I think that means two-thirds of votes cast at a meeting with a quorum or by written ballot without a meeting, so you have to see how many you need for a quorum or the procedure for a written ballot (if permitted).

A majority of the voting power could mean over 50% of those eligible to vote (paid dues, in good standing, etc.). Our Bylaws specify that quorum and voting percentages are all based on number of eligible votes cast vs number of eligible voters; but your may mean that or may mean eligible votes cast vs number of members.

I still don't think you need to amend your Articles (nor probably your CC&Rs or Declarations) if they are silent on staggering of terms. I still think you should just post the relevant sections. Just copy and paste them, or attach the entire documents if you have them as computer files.