Results 1 to 5 of 5
  1. #1
    Join Date
    Oct 2019
    Posts
    3

    Default HOA and Adoption of Bylaws

    My question involves personal property located in the State of: Arizona

    I recently sued my HOA to host a removal meeting. The judge at the time ruled that all signatories on the petition were allowed to vote. The judge ruled that the bylaws submitted by the BOD were invalid because they were not signed and/or adopted through minute meeting notes.

    The BOD asked homeowners to prove they paid their monthly assessment dues, since the old BOD refused to turn over any financial records.
    They started to recreate records through subpoena powers. The accounting is way off and some members are having a difficult time proving they paid their dues for the entire time they have been owners, sometimes people pay in cash, etc.

    When I sued the BOD we had no bylaws, meaning anyone in our community could vote, even if they were behind in assessments. Since the court ruled that we did not have valid bylaws, our BOD decided to adopt those bylaws.

    My question is: 1. can the BOD adopt bylaws during litigation to change the rules, to disenfranchise votes? 2. did they need membership approval to adopt bylaws? 3. do they need to adopt bylaws at an open meeting?

    We are a small complex and majority of the owners want this BOD removed. According to them we are all behind in our assessments unless we can prove we are not.

    Thank you for reading and your time.

  2. #2
    Join Date
    Nov 2013
    Posts
    6,450

    Default Re: HOA and Adoption of Bylaws

    Read the Arizona Condominium Act, Title 33, Chapter 9. to understand what the BOD can or can't do.

  3. #3
    Join Date
    Oct 2019
    Posts
    3

    Default Re: HOA and Adoption of Bylaws

    Thank you for the response. I am familiar with the statutes, but nothing really specifies the current situation. There were no bylaws when the court ruled in favor of myself, and so to avoid a court order they adopted the bylaws afterwards. Can they adopt bylaws to avoid a court order? Our bylaws are 13 years old.

  4. #4
    Join Date
    Nov 2013
    Posts
    6,450

    Default Re: HOA and Adoption of Bylaws

    Your response is somewhat confusing. You say there were no bylaws then you say the BOD adopted the bylaws and your bylaws are 13 years old. Are you saying that the HOA had drafted bylaws when it was organized 13 years ago but never voted to adopt them? And now the BOD has moved to adopt or has adopted the old laws?

    According to the statutes that I linked to above, if there were bylaws or a declaration adopted and recorded that gave the BOD the power to change or adopt the bylaws, the CC&R's or declaration would control. Since you had no adopted bylaws, the statute controls. Therefore, according to the statute, the bylaws must be adopted in an opening meeting of the members. So IMO the BOD can only adopt the bylaws by a vote of the membership.


    33-1248. Open meetings; exceptions

    A. Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the unit owners' association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association or any person designated by a member in writing as the member's representative and all members or designated representatives so desiring shall be permitted to attend and speak at an appropriate time during the deliberations and proceedings. The board may place reasonable time restrictions on those persons speaking during the meeting but shall permit a member or a member's designated representative to speak once after the board has discussed a specific agenda item but before the board takes formal action on that item in addition to any other opportunities to speak. The board shall provide for a reasonable number of persons to speak on each side of an issue. Persons attending may audiotape or videotape those portions of the meetings of the board of directors and meetings of the members that are open. The board of directors of the association shall not require advance notice of the audiotaping or videotaping and may adopt reasonable rules governing the audiotaping or videotaping of open portions of the meetings of the board and the membership, but such rules shall not preclude such audiotaping or videotaping by those attending, unless the board audiotapes or videotapes the meeting and makes the unedited audiotapes or videotapes available to members on request without restrictions on its use as evidence in any dispute resolution process. Any portion of a meeting may be closed only if that portion of the meeting is limited to consideration of one or more of the following:

    1. Legal advice from an attorney for the board or the association. On final resolution of any matter for which the board received legal advice or that concerned pending or contemplated litigation, the board may disclose information about that matter in an open meeting except for matters that are required to remain confidential by the terms of a settlement agreement or judgment.

    2. Pending or contemplated litigation.

    3. Personal, health or financial information about an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association, including records of the association directly related to the personal, health or financial information about an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association.

    4. Matters relating to the job performance of, compensation of, health records of or specific complaints against an individual employee of the association or an individual employee of a contractor of the association who works under the direction of the association.

    5. Discussion of a unit owner's appeal of any violation cited or penalty imposed by the association except on request of the affected unit owner that the meeting be held in an open session.

    B. Notwithstanding any provision in the condominium documents, all meetings of the unit owners' association and the board shall be held in this state. A meeting of the unit owners' association shall be held at least once each year. Special meetings of the unit owners' association may be called by the president, by a majority of the board of directors or by unit owners having at least twenty-five percent, or any lower percentage specified in the bylaws, of the votes in the association. Not fewer than ten nor more than fifty days in advance of any meeting of the unit owners, the secretary shall cause notice to be hand delivered or sent prepaid by United States mail to the mailing address of each unit or to any other mailing address designated in writing by the unit owner. The notice of any meeting of the unit owners shall state the date, time and place of the meeting. The notice of any annual, regular or special meeting of the unit owners shall also state the purpose for which the meeting is called, including the general nature of any proposed amendment to the declaration or bylaws, any changes in assessments that require approval of the unit owners and any proposal to remove a director or officer. The failure of any unit owner to receive actual notice of a meeting of the unit owners does not affect the validity of any action taken at that meeting.

    C. Before entering into any closed portion of a meeting of the board of directors, or on notice of a meeting under subsection D of this section that will be closed, the board shall identify the paragraph under subsection A of this section that authorizes the board to close the meeting.

    D. Notwithstanding any provision in the declaration, bylaws or other condominium documents, for meetings of the board of directors that are held after the termination of declarant control of the association, notice to unit owners of meetings of the board of directors shall be given at least forty-eight hours in advance of the meeting by newsletter, conspicuous posting or any other reasonable means as determined by the board of directors. An affidavit of notice by an officer of the association is prima facie evidence that notice was given as prescribed by this section. Notice to unit owners of meetings of the board of directors is not required if emergency circumstances require action by the board before notice can be given. Any notice of a board meeting shall state the date, time and place of the meeting. The failure of any unit owner to receive actual notice of a meeting of the board of directors does not affect the validity of any action taken at that meeting.

    E. Notwithstanding any provision in the declaration, bylaws or other condominium documents, for meetings of the board of directors that are held after the termination of declarant control of the association, all of the following apply:

    1. The agenda shall be available to all unit owners attending.

    2. An emergency meeting of the board of directors may be called to discuss business or take action that cannot be delayed for the forty-eight hours required for notice. At any emergency meeting called by the board of directors, the board of directors may act only on emergency matters. The minutes of the emergency meeting shall state the reason necessitating the emergency meeting. The minutes of the emergency meeting shall be read and approved at the next regularly scheduled meeting of the board of directors.

    3. A quorum of the board of directors may meet by means of a telephone conference if a speakerphone is available in the meeting room that allows board members and unit owners to hear all parties who are speaking during the meeting.

    4. Any quorum of the board of directors that meets informally to discuss association business, including workshops, shall comply with the open meeting and notice provisions of this section without regard to whether the board votes or takes any action on any matter at that informal meeting.

    F. It is the policy of this state as reflected in this section that all meetings of a condominium, whether meetings of the unit owners' association or meetings of the board of directors of the association, be conducted openly and that notices and agendas be provided for those meetings that contain the information that is reasonably necessary to inform the unit owners of the matters to be discussed or decided and to ensure that unit owners have the ability to speak after discussion of agenda items, but before a vote of the board of directors or members is taken. Toward this end, any person or entity that is charged with the interpretation of these provisions, including members of the board or directors and any community manager, shall take into account this declaration of policy and shall construe any provision of this section in favor of open meetings.

    G. This section does not apply to timeshare plans or associations that are subject to chapter 20 of this title.
    33-1246. Bylaws

    A. At the time the unit owners' association is organized, the association shall adopt bylaws which provide for each of the following:

    1. The number of members of the board of directors and the titles of the officers of the association.

    2. Election by the board of directors of a president, treasurer, secretary and any other officers of the association which the bylaws specify.

    3. The qualifications, powers and duties, terms of office and manner of electing and removing board members and officers and filling vacancies.

    4. Which, if any, of its powers the board of directors or officers may delegate to other persons or to a managing agent.

    5. Which of its officers may execute, certify and record amendments to the declaration on behalf of the association.

    6. The method of amending the bylaws.

    B. Subject to the provisions of the declaration, the bylaws may provide for any other matters the association deems necessary and appropriate.

  5. #5
    Join Date
    Oct 2019
    Posts
    3

    Default Re: HOA and Adoption of Bylaws

    Thank you so much.
    The 13 year old bylaws were never adopted by the BOD, so to avoid a court order the current BOD adopted them without membership approval. I am arguing in court currently, that they needed membership approval because the statute and CCR's govern the community.

    1. Sponsored Links
       

Similar Threads

  1. How to Interpret My Bylaws
    By freshwun in forum Real Estate Ownership and Title
    Replies: 4
    Last Post: 01-21-2010, 10:09 AM
  2. Business Issues: Nonprofit Bylaws
    By dma91 in forum Business Law
    Replies: 1
    Last Post: 08-09-2009, 09:43 AM
  3. Business Disputes: S Corp Bylaws
    By colgate13 in forum Business Law
    Replies: 1
    Last Post: 05-03-2009, 09:38 PM
  4. How Do I Adopt Bylaws
    By cburgner in forum Real Estate Ownership and Title
    Replies: 1
    Last Post: 03-03-2009, 06:44 PM
  5. Business Disputes: Creating Bylaws
    By ddc0213 in forum Business Law
    Replies: 1
    Last Post: 04-28-2008, 09:08 AM
 
 
Sponsored Links

Legal Help, Information and Resources