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Default Interpretation of Bylaws for Amendment Change

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clinderw

Junior Member
What is the name of your state (only U.S. law)? Ohio

We are voting to change an amendment to our bylaws in an expeditious fashion and I believe our board/management company is misinterpreting our bylaws for this. One thing to note, we already had our annual meeting and the vote for this issue is being conducted view mail with paper ballots and not a meeting. Here are the two relevant sections of the bylaws that answer my question:

Majority: Except as otherwise provided in the Act, the Declaration or these Bylaws, all actions taken by the Unit Owners shall require the affirmative vote of a majority of the voting power of the Association present at a meeting at which a quorum is present.

Amendments: Provisions of these Bylaws may be amended by the Unit Owners at a meeting held for such purpose by the affirmative vote of those entitled to exercise not less than seventy-five percent (75%) of the voting power, provided, however, that no amendment shall have any effect upon Declarant, the rights of Declarant under these Bylaws and the rights of bona fide mortgagees of Units until the written consent of Declarant and/or such mortgagees to such amendment has been secured


My interpretation: is that we need 75% of the building to vote for quorum, and that we need a simple majority of that quorum to pass.
Buildings interpretation: 75% of the ownership of the building need to vote in an affirmative way for the amendment

Currently, we have 79% of the building who have submitted paper ballets, where 66% in favor of the amendment passing, and about 13% opposed.

Any assistance would be appreciated, if I need to further clarify or provide details please let me know.
 


LdiJ

Senior Member
What is the name of your state (only U.S. law)? Ohio

We are voting to change an amendment to our bylaws in an expeditious fashion and I believe our board/management company is misinterpreting our bylaws for this. One thing to note, we already had our annual meeting and the vote for this issue is being conducted view mail with paper ballots and not a meeting. Here are the two relevant sections of the bylaws that answer my question:

Majority: Except as otherwise provided in the Act, the Declaration or these Bylaws, all actions taken by the Unit Owners shall require the affirmative vote of a majority of the voting power of the Association present at a meeting at which a quorum is present.

Amendments: Provisions of these Bylaws may be amended by the Unit Owners at a meeting held for such purpose by the affirmative vote of those entitled to exercise not less than seventy-five percent (75%) of the voting power, provided, however, that no amendment shall have any effect upon Declarant, the rights of Declarant under these Bylaws and the rights of bona fide mortgagees of Units until the written consent of Declarant and/or such mortgagees to such amendment has been secured


My interpretation: is that we need 75% of the building to vote for quorum, and that we need a simple majority of that quorum to pass.
Buildings interpretation: 75% of the ownership of the building need to vote in an affirmative way for the amendment

Currently, we have 79% of the building who have submitted paper ballets, where 66% in favor of the amendment passing, and about 13% opposed.

Any assistance would be appreciated, if I need to further clarify or provide details please let me know.
Unfortunately for your cause I believe that the building is right and you are wrong. Time to lobby for more votes.
 

latigo

Senior Member
Assuming that you are speaking of an HOA, its bylaws/declaration and that the "board/management company" functions as the association's board of trustees or directors . . .

And neither the association's Declaration or Bylaws specifically permit voting on such a proposed amendment by the owners other than in attendance at a meeting called for that purpose, then the board's actions are in violation thereof; to-wit:

Ohio Revised Statutes Chapter 5312: OHIO PLANNED COMMUNITY LAW - Amendment to declaration of bylaws Section 5312.05 (A)

"Unless otherwise specified in the declaration or bylaws, the owners may amend the declaration and bylaws by the consent of seventy-five per cent of the owners, either in writing or in a meeting called for that purpose."
____________

In sum, your interpretation appears to be sound and the Board's isn't. Now, the $64 question. What are you going to do about it? Spend a shoe box full of "C" notes to ask a court for a declaratory judgment proving you are right? Or accept the consensus of the owners regardless of how it is polled?
 

LdiJ

Senior Member
Assuming that you are speaking of an HOA, its bylaws/declaration and that the "board/management company" functions as the association's board of trustees or directors . . .

And neither the association's Declaration or Bylaws specifically permit voting on such a proposed amendment by the owners other than in attendance at a meeting called for that purpose, then the board's actions are in violation thereof; to-wit:

Ohio Revised Statutes Chapter 5312: OHIO PLANNED COMMUNITY LAW - Amendment to declaration of bylaws Section 5312.05 (A)

"Unless otherwise specified in the declaration or bylaws, the owners may amend the declaration and bylaws by the consent of seventy-five per cent of the owners, either in writing or in a meeting called for that purpose."
____________

In sum, your interpretation appears to be sound and the Board's isn't. Now, the $64 question. What are you going to do about it? Spend a shoe box full of "C" notes to ask a court for a declaratory judgment proving you are right? Or accept the consensus of the owners regardless of how it is polled?
So you believe that the plain language of that says that only 75% of the owners have to vote, and then its a majority of those 75%? To me, the plain language of that says that it takes the actual consent of 75% of the owners to change the bylaws.

Under your interpretation, it would take less than 50% of the total owners voting yes to make a bylaw change happen. If fact, it could be done with only 38% of the total owners voting yes. 38% of total owners would be simple majority of 75% of voting owner. I sincerely doubt that was the intention of that statute.

OP, you have about 21% of the voters who haven't voted at all. It would be a lot easier and less expensive to lobby for those votes.
 

LdiJ

Senior Member
I agree - 75% of the owners, not the owners who voted...just the owners.
The OP and Latigo are not even saying that it needs to be 75% of the owners who voted. They are saying that a vote can take place with a 75% quorum, and then just a simple majority at that point.

I will explain for the sake of people who might not know what a "quorum" is....

Lets say, for the sake of simplicity that there are 100 owners. Lets say that the law or the bylaws state that 75 owners have to show up to vote on a bylaw amendment or a vote cannot be taken at all. That means that the quorum is 75 owners. As the OP and Latigo are arguing that means that 38 owners could decide the fate of 100 owners, because 38 people is a simple majority of 75. They are claiming that as long as 75 owners vote, that its a simple majority.

The plain language of the statute states that 75 out of 100 owners would have to agree (consent) to a bylaw change. The plain language says that 75% of the voters need to vote yes to the bylaw change in order for it to happen.

That interpretation makes absolute sense. The OP's and Latigo's interpretation makes no sense at all. Statutes would never be written to allow 38% of the owners to control what happens within an HOA's bylaws.
 

clinderw

Junior Member
Sounds like i got this one wrong and owe an apology to our management company whom i went a few rounds with.

Thanks for all the input and feedback.
 

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