Initiating Bylaw Ammendments

Bylaw amendments must be presented to the board 90 days before an annual meeting. The board simply sees if the proposed amendment is consistent with other byalws, is legal and feasible. the board makes no judgement on the proposed bylaw.

The proposed bylaw is announced in the notice of the annual meeting. The vote is taken at the meeting.

In the case of several bylaw amendments or a total revision, the board has sponsored a two evening Q/A and a reading out loud of the proposed amendments. this gets out all the questions, etc. At that time, the board may or may not give its "blessing" of the amendment, but the real power is in the hands of the membership.

At a duly called, quorum-met meeting, only a majority vote is needed to pass the amendment. However, since our dues amount are stated in the bylaws, a 2/3 is required for amending the rate.

Hi Mary:

I didn't mean to imply that the board would want to block an amendment for any reason. I'm just trying to get a feel for the level of action that most boards take to start the process, if any -- what they feel their responsibility is toward this for the community. From our governing docs, either the board may initiate, or the HO may initiate. Right now, if a HO requests something that must be denied per the bylaws, our MC explains why it is denied and tells them (politely) where to look in our docs for the process to change ... "it only takes 66 2/3 of the HOs to change something" he says.

Most HOs aren't willing to do anything further (except complain :-). Once a petition is brought forward by HOs, the process would be the same ... but if the board desired, WE could bring the matter before the membership without needing to do the petition, which would save the HO some effort. Basically, do we want the board do this regularly or do we want to require the HOs to get the petitions is what I'm getting at. How much responsibility do boards usually take for initiating the process.

As far as our docs, we don't have CCRs. We are in MI and zoned site condo. our comparable docs would be recorded Master Deed (defines the property) and Bylaws, which contain a major section for "ARCHITECTURAL, BUILDING SPECIFICATIONS AND USE RESTRICTIONS". We also have Rules and Regs that further quality this section (not recorded).

Dee, I'm with Mary.

We (the BOD) rarely take it upon ourselves to bring a proposed amendment forward. I can only think of ONE time we did that (our sign amendment), but that was because we needed to update it to allow for political signs and security warning signs.

The association belongs to the homeowners and there is a prescribed method for homeowners to affect changes to the documents.

Our role is to enforce what is there.

If people are complaining about various covenant, then, if they feel strongly enough about it, they should do the work to garner the support to bring an amendment of that covenant to a vote of the membership.

The ONLY role we play, as a BOD, is to point them to the documents for the process.

People will always complain about various covenants.

Why do you think you need to work to amend the documents just because people complain about them?

Now, if we get a petition with the requisite number of people "complaining" about a specific covenant, then that is another matter.

But you don't just drop everything and say, "Oh, okay," because you get a few people who don't like a covenant or two.

Dee,

Our bylaws have been amended a couple of times. Various methods were used:

1. Proposed as a motion at annual meeting by a homeowner for the board to consider bringing the proposed change forward to the membership at the next annual meeting.

2. Board of Directors proposed some on their own.

3. Petition by the membership.

Check you legal documents to see how they may be amended. You could also check your States corporate law (if the Association is incorporated) or any property/HOA laws to see if they mention the procedure.

Tim

Dee,
Listen to what Mary and Michele are saying. Rules are not By-laws. Now if you have rules in your by-laws, change the By-laws to get rid of the rules and cover them under rules that that can be changed by the Board. Certainly, pool hours and inflatables are not by-laws, they are rules and regulations or code of conduct or can be called anything I guess. Your Board should establish something along these lines and it should be a day to day manual, subject to change by vote of the Board (Their job).

Dee,
Actually, I live in a condo in South Carolina and our documents contain, Declaration, Master deed and By-laws,, plus exhibits, I think we have 8 or 9 exhibits.

Our By laws restrict the owner to one small pet weighing blah, blah and must be leashed at all times.
Our rules states where these animals are allowed on common property, and where they are not allowed.
In order to change the By Laws we must amend, in order to change the rules the board does it. We are thinking of designating a pet area, we can do that with a rule. It appears your requirements to change day to day operation is cumbersome. Maybe you all need to sit down and make an amendment to the Master deed and by-laws. We did and now our documents read the First Amended Master Deed and by-laws. I certainly endorse your comparing other nearby documents. I would look particularly if they have made any amendments, see how they did it. Should be in their minutes or Board reports, etc.
Of course you understand if you were to change your documents, seek good legal council.

Dee:
While amending By-laws, beware the following:

MHA Homeowner Alert – Revising By-Laws

Maryland passed ground breaking legislation in 2009 that further safe-guards homeowners living in Home Owners Associations (HOA) or Condominiums.

However, if you live in an association that is working to revise or amend HOA/Condo governing documents, here are some important tips to keep in mind as you review and prepare to vote on those changes.

Homeowners, or a committee of homeowners, should review new wording thoroughly, comparing existing wording to new wording line-by-line. This works best by having old text and new text in different fonts or colors while reviewing the documents.

1. Beware of boiler plate documents that completely replace old documents with new, and often inappropriate, guidelines.

2. Beware of language that states the homeowners should pay “all attorney fees actually incurred by the Board of Directors.” This wording obligates homeowners to pay for the Board’s attorneys’ fees, as well as their own attorney’s fees, even if the judgment is in favor of the homeowner. Such wording sets up a “no-win” situation for homeowners and could lead to bankruptcy and/or foreclosure for any homeowner unfortunate enough to be put into this situation. California has addressed this issue with Civil Code 1354(c) which states “in an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs.”

3. Beware of documentation wording that gives the Board the ability to file a lien for unpaid fines and then foreclose on the property. Wording such as: “the Board shall have the power to impose reasonable fines which shall constitute a lien upon the property and shall be collected in the same manner as any other assessment levied against a unit owner…” should be avoided. Recently California and Florida have passed legislation to prohibit associations from including fines in a lien and fines may not be characterized, nor treated in the governing documents as an assessment which then becomes a lien. Arizona has passed legislation that an association can file a lien for unpaid fines, but the lien cannot be collected until the property changes ownership.

MHA recommends that before voting for any amendments to HOA/Condo governing documents, homeowners carefully examine changes, and if the language or intent of the changes is unclear, require the Board to explain the reasons for the change and explain the implications of new wording. A clear understanding of governing documents is essential so that homeowners can vote wisely to safeguard their homes.

Prepared by Maryland Homeowners’ Association, Inc.
www.marylandhomeownersassociation.info, 301-654-9242
July 2009

JeanneK

So what, Dee?

I mean really, a COUPLE requests??

The HOs grumble but eventually change the design.

Seriously, I'm all for a proactive board, but the point that the board would get involved with initiating a covenant amendment shouldn't be because a handful of people are the loudest at being crybabies.

I would suggest that the board take a proactive position on covenant amendments when the covenant puts the association at risk by being either unenforceable or by being worded in such a way as to potentially not survive a legal challenge.

Not because of some grumpy homeowners who aren't even interested enough in the change to invest the legwork and sweat to make it happen.

You are not their customer service reps.

You have a responsibility to the integrity of the documents.

If some covenants are just making a few homeowner's lives miserable, that's too bad. They were aware of the restrictions when they took title.

If some of the covenants are creating potential legal landmines, identify those and fix them.

RobertR:
Thanks for the kind words. Since state laws vary so much, Maryland is all we can handle.
However, if anyone wants to contact MHA, use [email protected] and put to JeanneK in the message. JeanneK.
Jeanne