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Understanding SCOPE for amending a proposal - Beach Canopies


John Cummings

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On 9/22/2022 at 12:30 PM, Joshua Katz said:

But it doesn't matter what I think, or what you think. What matters if what your courts have done with it. That requires research and is a question for an attorney.

Thanks and thanks everyone.

It would cost me a fortune to try to explain this in court lol.    And the good news is that I probably won't have to.  Due to our "new" lawyer correcting our BOD on the voting requirements for bylaw changes it is likely that our annual meeting process will have to change.  I would like to see a deliberative session to discuss, debate and amend articles followed by the creation of the final election ballot and a vote 30 days later.

The new lawyer instructed the BOD that any bylaw changes requires 2/3 of ALL OWNERS and that is 304 owners as we are an association of 456.  We have always used 2/3 of VOTERS.   We rarely have over 300 voters so we either change our process to be more inclusive or we never add/change another bylaw.  We are a vacation resort and people come and go, so any change they make to the date/time would likely still have less than 304 voters.  I guess they could work to get the number to perhaps 350, but that would still make it hard to change a bylaw as they would still need 86% of the vote. I guess trivial bylaws could pass and controversial ones would never pass and perhaps that is the intent.

Thanks

John

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On 9/22/2022 at 10:43 AM, John Cummings said:

It sounds like the more appropriate word is "germane" and not "scope", but we are talking the same thing.  I will use germane in the future.

It is the appropriate word in this context. Scope of notice is still a thing and is relevant in other contexts, and would be relevant to motions to Amend Something Previously Adopted, especially amendments to the bylaws.

On 9/22/2022 at 11:06 AM, Atul Kapur said:

Lets just take @John Cummings at his word and work from there. He tells us that there is a 21-day notice requirement. No, that's not in RONR for original main motions, but let's accept that it is a requirement for his group. 

If so, then scope of notice applies to anything proposed, such as this Item #15. That is, any amendments to Item #15 that are moved at the meeting have to fall within the scope of notice. I agree with Mr. Katz that exceeding the amount is outside the scope and that adding firepits is outside the scope.

In this case, as 21 days' notice is required, no amendment that goes beyond the scope of notice is in order.

There are some situations (not this one of John's) where amendments outside the scope would be in order but they then change the vote required to adopt the amended Item (e.g., to Amend Something Previously Adopted). Some of the responses above discuss this, but it does not appear to apply to John.

It is not clear to me that RONR applies a scope of notice requirement to original main motions, even if the organization's rules (or in this case, applicable law) require previous notice.

Even to the extent that RONR does apply a scope of notice requirement in such circumstances, it is not clear to me that this information is of much use to Mr. Cummings, as I strongly suspect the answer to his question will have more to do with the NH Condo Act than with RONR.

On 9/22/2022 at 11:15 AM, John Cummings said:

The NH Condo Act requires all proposed changes to be "noticed to all owners" 21 days prior to the annual meeting.  It goes even further. The Association Secretary is required to prepare and Affidavit documenting that all owners have been noticed and the method of notice.

Mr. Cummings, since the previous notice requirement in question is found in the NH Condo Act (which will take precedence over RONR), I would reiterate again that the question of what amendments (if any) are permissible under the terms of that act is a question which should be directed to an attorney.

On 9/22/2022 at 11:47 AM, John Cummings said:

It would cost me a fortune to try to explain this in court lol.    And the good news is that I probably won't have to.  Due to our "new" lawyer correcting our BOD on the voting requirements for bylaw changes it is likely that our annual meeting process will have to change.  I would like to see a deliberative session to discuss, debate and amend articles followed by the creation of the final election ballot and a vote 30 days later.

The new lawyer instructed the BOD that any bylaw changes requires 2/3 of ALL OWNERS and that is 304 owners as we are an association of 456.  We have always used 2/3 of VOTERS.   We rarely have over 300 voters so we either change our process to be more inclusive or we never add/change another bylaw.  We are a vacation resort and people come and go, so any change they make to the date/time would likely still have less than 304 voters.  I guess they could work to get the number to perhaps 350, but that would still make it hard to change a bylaw as they would still need 86% of the vote. I guess trivial bylaws could pass and controversial ones would never pass and perhaps that is the intent.

I would note that none of the examples of motions you have presented us in this thread are bylaw amendments.

To the extent that your question also concerns bylaw amendments, the rules for scope of notice in RONR certainly apply to bylaw amendments - although as previously noted, any requirements in applicable law will take precedence over what RONR says on this matter.

Edited by Josh Martin
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On 9/22/2022 at 1:52 PM, Josh Martin said:

Mr. Cummings, since the previous notice requirement in question is found in the NH Condo Act (which will take precedence over RONR), I would reiterate again that the question of what amendments (if any) are permissible under the terms of that act is a question which should be directed to an attorney.

Thank Josh,

This post went into directions that I never intended.  I simply wanted to know what was a legal vs illegal amendment.  "scope", "germane" or what ever the tecnical word is, I think you gave me the info I needed.

I agree, I have an attorney.  I actually spoke with 2 NH Condo Attorney's before I came here and got 2 different answers.  

Thanks
John

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On 9/22/2022 at 1:52 PM, Josh Martin said:

It is not clear to me that RONR applies a scope of notice requirement to original main motions, even if the organization's rules (or in this case, applicable law) require previous notice.

If there is a requirement for previous  notice of a motion then scope of notice automatically comes into play. That is the case whether the requirement originates in RONR, the bylaws, or statute. In my opinion they are inseparable because the notice creates its own scope.

Can you provide an example where previous notice is required but scope of notice does not apply?

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On 9/22/2022 at 12:57 PM, John Cummings said:

This post went into directions that I never intended.  I simply wanted to know what was a legal vs illegal amendment.  "scope", "germane" or what ever the tecnical word is, I think you gave me the info I needed.

"Scope of notice" and "germaneness" are not simply two different terms for the same thing, they are two very different things which apply in different situations. "Scope of notice" is a much stricter requirement than "germaneness."

But I don't think it matters, because it seems to me that the NH Condo Act is what will be controlling in this matter.

On 9/22/2022 at 3:14 PM, Atul Kapur said:

If there is a requirement for previous  notice of a motion then scope of notice automatically comes into play. That is the case whether the requirement originates in RONR, the bylaws, or statute. In my opinion they are inseparable because the notice creates its own scope.

Can you provide an example where previous notice is required but scope of notice does not apply?

I am not aware of a clear rule one way or another on this matter. If you are aware of such a rule, I would be happy to hear it.

RONR does provide the following in 10:47:

"If previous notice is given at a meeting, it can be given orally unless the rules of the organization require it to be in writing—which is often the case with notice of amendments to bylaws. Unless the rules require the full text of the motion, resolution, or bylaw amendment to be submitted in the notice, only the purport need be indicated; but such a statement of purport must be accurate and complete—as in “to raise the annual dues to $20”—since it will determine what amendments are in order when the motion is considered. The notice becomes invalid if the motion is amended beyond the scope of the notice (see also 35, 57)." RONR (12th ed.) 10:47

One reading of this, as you say, is that in any case where notice is required (or where such notice lowers the threshold for adoption), the notice becomes invalid if the motion is amended beyond the scope of the notice.

The two sections that RONR links to, however, are Rescind; Amend Something Previously Adopted and Amendment of Bylaws.

Now, this does not necessarily mean that the concept of scope of notice is limited to those cases, but it does at the very least mean that RONR provides no guidance on what "scope of notice" means in other cases.

I would also disagree in part with your statement that "That is the case whether the requirement originates in RONR, the bylaws, or statute." It seems to me that if the requirement is found in statute, then what amendments (if any) are permitted is a legal question.

Edited by Josh Martin
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Thanks everyone!

This discussion is leading me down a road that is telling me that amendments to proposed amendments while possibly legal should not be allowed for the simple reason that we just don't understand RONR.   The responders are giving me answers that they could most likely give in their sleep while the person(me) that needs to apply this to a real life situation is struggling.  If I'm struggling, I can't imaging how someone that hasn't done any research or studying feels.

As a test of our associations knowledge of amendments. I proposed this EXACT same question on our FB page and 100% of the responses were wrong.  The answer is that all my proposed amendments are illegal, but the Facebook responders to my poll said they were all legal.  At least that is how I this thread went.

Not really sure how to process this. 

Thanks

John

 

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On 9/22/2022 at 7:06 PM, John Cummings said:

telling me that amendments to proposed amendments while possibly legal should not be allowed for the simple reason that we just don't understand RONR

That's a bad reason to restrict members' rights, particularly when there is a simple solution.

It would be preferable to involve a parliamentarian in your meeting to preserve members' rights and assist you in having a fair and efficient meeting.

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On 9/22/2022 at 7:17 PM, Atul Kapur said:

That's a bad reason to restrict members' rights, particularly when there is a simple solution.

It would be preferable to involve a parliamentarian in your meeting to preserve members' rights and assist you in having a fair and efficient meeting.

I don't disagree with that, but this person would also need to be an expert and NH Condo Law, our Condo instruments and RONR. I just don't know how many of these types exist.  There are many moving parts to integrate here and way more than simply a stand-alone RONR issue.

Plus, I thought I heard in this thread that due to the NH Condo Law regarding "proper notice" that we can't do amendments anyway or at the very least we need to speak to a lawyer. I did speak to 2 lawyers and got 2 different answers.  One lawyer that I paid, told me NO amendments are allowed due to the "proper notice" law.  The other lawyer that I didn't pay, I just randomly emailed a lawyer I found online, told me that amendments are allowed.  

I'm hoping for the reasons I stated earlier regarding the 2/3 "OWNER" requirement to pass a bylaw that this all goes away. I find this extremenly interesting, but very complicated at the same time. 

Thanks

John

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On 9/22/2022 at 6:06 PM, John Cummings said:

This discussion is leading me down a road that is telling me that amendments to proposed amendments while possibly legal should not be allowed for the simple reason that we just don't understand RONR. 

No, this is not a good takeaway from this discussion.

What should be done, first and foremost, is for the organization to consult an attorney to discover what amendments are permitted under the NH Condo Law. 

After that, if it is determined that amendments are permitted at all for motions for which previous notice is required, then further parliamentary study would be advisable at that time.

Further, "we should not allow this because we don't know what we are doing" does not set a good precedent for the next issue.

I concur with Dr. Kapur that the organization may wish to consider hiring a parliamentarian for assistance at its meetings. The National Association of Parliamentarians and American Institute of Parliamentarians provide referrals.

On 9/22/2022 at 6:06 PM, John Cummings said:

As a test of our associations knowledge of amendments. I proposed this EXACT same question on our FB page and 100% of the responses were wrong.  The answer is that all my proposed amendments are illegal, but the Facebook responders to my poll said they were all legal.  At least that is how I this thread went.

The response to your question you should take away from this thread is that, because the requirement for previous notice is found in the NH Condo Law, you need to consult an attorney to determine what amendments, if any, are permissible under that law. No one on this forum (let alone on some Facebook page) is prepared to tell you what the NH Condo Law provides.

On 9/22/2022 at 6:27 PM, John Cummings said:

Plus, I thought I heard in this thread that due to the NH Condo Law regarding "proper notice" that we can't do amendments anyway or at the very least we need to speak to a lawyer.

Definitely the second one. No one here is going to tell you what NH Condo Law means (or at least they should not do so).

On 9/22/2022 at 6:27 PM, John Cummings said:

I did speak to 2 lawyers and got 2 different answers.  One lawyer that I paid, told me NO amendments are allowed due to the "proper notice" law.  The other lawyer that I didn't pay, I just randomly emailed a lawyer I found online, told me that amendments are allowed.

Generally I would be inclined to think the opinion of the attorney who actually took you on as a client and (presumably) reviewed the law in question should be given more weight than the random email from a lawyer you found online.

If it is in fact correct under the NH Condo Law that no amendments whatsoever are permitted to the motions which require previous notice (and I express no view personally on whether this is correct), then that takes precedence over RONR.

On 9/22/2022 at 6:27 PM, John Cummings said:

I'm hoping for the reasons I stated earlier regarding the 2/3 "OWNER" requirement to pass a bylaw that this all goes away. I find this extremenly interesting, but very complicated at the same time. 

I am not clear on how that would make this all go away. None of the motions you asked us about appear to be bylaw amendments.

Edited by Josh Martin
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On 9/22/2022 at 10:25 AM, George Mervosh said:

But, Mr. Cummings, you have stated that this is an original main motion, so you are not presenting a set of facts where the scope of notice applies, at least as far as I can tell.  

I think the point is that this motion either required, or was given, previous notice, and the question is whether the subsequent amendments would be beyond the scope of the original notice.

Why notice might be required here is not clear, but it's not uncommon for societies to require previous notice for large expenditures.  In which case, amendments offered from the floor which exceed the scope of the notice would cause the notice to become invalid.  This might render the amendments out of order, or possibly affect the voting threshold, depending on the motion.

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On 9/22/2022 at 7:28 PM, Josh Martin said:

Thanks Josh.

I'm not familar with the interface here, so can't include you comments in my response. I'll try my best to respond to each concern.

1) I agree, that my take away isn't idea, but I'm being pragmatic.  I also agree with consulting an attorney to get a ruling whether or not amendments are allowed. The issue at hand is not a RONR issue.  The BOD coaches the associaiton attorney what to say. For example, prior to this NEW attorney, several owners have challenged the 2/3 voting requirement for bylaw changes as the NH Condo Act states 2/3 of all owners, but we have always been doing it as 2/3 of voters.  Last year the prior lawyer was challenged by an owner on the 2/3 requirement.  The lawyers response was that technically the owner was right and the law says it takes 2/3 of all OWNERS to pass a bylaw change, but since the association has always been using a 2/3 of VOTERS requirement that this method set "precedent" and we used 2/3 of vote cast as the requrement to pass a bylaw.

Fast forward to this year and the NEW lawyer said that the NH Condo Act requires 2/3 of OWNERS to pass a bylaw change and since we only had 240 voters out of the required 304 votes needed to pass a bylaw change that all bylaw articles are null and void.

I've learned on another forum that SOME HOA lawyers can be coached to say whatever the BOD wants them to say. If they don't, then they could lose his job.

Sorry, but I have to complete the response to Josh in the AM.  I'm beat and can't think anymore.

Thanks

John

 

 

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On 9/22/2022 at 7:46 PM, John Cummings said:

I agree, that my take away isn't idea, but I'm being pragmatic.  I also agree with consulting an attorney to get a ruling whether or not amendments are allowed. The issue at hand is not a RONR issue.  The BOD coaches the associaiton attorney what to say. For example, prior to this NEW attorney, several owners have challenged the 2/3 voting requirement for bylaw changes as the NH Condo Act states 2/3 of all owners, but we have always been doing it as 2/3 of voters.  Last year the prior lawyer was challenged by an owner on the 2/3 requirement.  The lawyers response was that technically the owner was right and the law says it takes 2/3 of all OWNERS to pass a bylaw change, but since the association has always been using a 2/3 of VOTERS requirement that this method set "precedent" and we used 2/3 of vote cast as the requrement to pass a bylaw.

Mr. Cummings, while I have sympathy for your situation, I am afraid that I do not think this forum can be of much assistance. It seems increasingly clear that the issues facing the association are legal issues, not parliamentary issues, and we cannot provide assistance regarding legal issues.

Edited by Josh Martin
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On 9/22/2022 at 4:14 PM, Atul Kapur said:

If there is a requirement for previous  notice of a motion then scope of notice automatically comes into play. That is the case whether the requirement originates in RONR, the bylaws, or statute. In my opinion they are inseparable because the notice creates its own scope.

Can you provide an example where previous notice is required but scope of notice does not apply?

 

On 9/22/2022 at 5:13 PM, Josh Martin said:

I am not aware of a clear rule one way or another on this matter. If you are aware of such a rule, I would be happy to hear it.

RONR does provide the following in 10:47:

Josh, I believe you are reading the rule entirely too narrowly. While, as I say later, 10:8(7)(a) is such a rule, it is also in 10:47 itself:

"If previous notice is given at a meeting, . . . only the purport need be indicated; but such a statement of purport must be accurate and complete . . . since it will determine what amendments are in order when the motion is considered. The notice becomes invalid if the motion is amended beyond the scope of the notice (see also 35, 57)." RONR (12th ed.) 10:47

This paragraph clearly states that scope of notice is inherent in the concept of notice ("The notice becomes invalid if the motion i amended beyond the scope of the notice") and states the effect of scope of notice ("a statement of purport . . . will determine what amendments are in order"). 

On 9/22/2022 at 5:13 PM, Josh Martin said:

One reading of this, as you say, is that in any case where notice is required (or where such notice lowers the threshold for adoption), the notice becomes invalid if the motion is amended beyond the scope of the notice.

As I asked before, please tell me what other reasonable interpretation there is.

On 9/22/2022 at 5:13 PM, Josh Martin said:

The two sections that RONR links to, however, are Rescind; Amend Something Previously Adopted and Amendment of Bylaws.

The fact that 10:47 says "(see also 35, 57)" does not mean that it (or, indeed, all of 10:44-51) is limited to the motions to rescind or amend something previously adopted or to bylaws amendments. In fact 10:8(7)(a) indicates that the organization can require previous notice for all or a subset of original main motions, and gives two examples.

On 9/22/2022 at 5:13 PM, Josh Martin said:

Now, this does not necessarily mean that the concept of scope of notice is limited to those cases, but it does at the very least mean that RONR provides no guidance on what "scope of notice" means in other cases.

I disagree. 10:47 describes what it means generally, not just for rescind or amend something previously adopted or for bylaws amendments.

On 9/22/2022 at 5:13 PM, Josh Martin said:

It seems to me that if the requirement is found in statute, then what amendments (if any) are permitted is a legal question.

Not if, as I am arguing, scope of notice is inherent in the concept of previous notice.

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On 9/22/2022 at 9:49 PM, Josh Martin said:

Mr. Cummings, while I have sympathy for your situation, I am afraid that I do not think this forum can be of much assistance. It seems increasingly clear that the issues facing the association are legal issues, not parliamentary issues, and we cannot provide assistance regarding legal issues.

Josh,

I would disagree, you have been of tremendous assistance and I think you have already answered the question that I came here for.  Unfortunately, in my situation, Robert's Rule's is just 1 piece of the puzzle, there is not a Robert's Rules only solution that will solve any of our issues.  I came here simply trying to get a better understandinf of how you determine what is germane to a motion and therefore would be a LEGAL amendment.  You have all helped, but I love Joshua's explanation on how to determine if something is germane.  His explanation.  "Would you be surprised, yes or no?"   This is the layman's answer I was looking for.

If our election process ran more like my town in Massacusetts ran, then our problems would be solved.  My biggest complaint about amendments, right or wrong, is that the 2/3 owners NOT in attendance are not informed and they are shut out of the vote.  I'm not here to debate the legalities of amendments. I think they violate the "proper notice" law in the Condo Act, but that is not relevant to my question.

In my home town, we separate the deliberative session from the voting.  We have our Deliberative session 2 months before the election.  This session is run under RONR or something very similar that towns use. The "proposed" ballot articles are discussed here and typically we struggle to get the 100 voters out of 5000 residents to make the quorum.   This meeting finalizes the ballot and then the entire town votes 60 days later.

Our election process is going to have to change or we will never have enough voters to change another bylaw. The new lawyer corrected our Board and told them all bylaw changes required 2/3 vote of OWNERS, not VOTERS.   That ruling might seem insignificat to you folks here, but it is a game changer, trust me.  

I would retire this thread as you have been more than helpfull, or if you are curious about other things, I will gladly respond to any questions.

Thanks

John

 

Edited by John Cummings
typo
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On 9/23/2022 at 6:58 AM, John Cummings said:

I love Joshua's explanation on how to determine if something is germane.  His explanation.  "Would you be surprised, yes or no?"   This is the layman's answer I was looking for.

That is the explanation of scope of notice. Germaneness is a different thing.

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On 9/23/2022 at 7:28 AM, Atul Kapur said:

That is the explanation of scope of notice. Germaneness is a different thing.

Oh no -lol

Are we still referring to the same thing though?  I will never and I mean never know all the exact words that you folks use. In layman's terms I'm simply asking how do you know if an amendment to a proposed amendment is legal or illegal?

I believe it was you on another thread that brought up the word "SCOPE" and you gave me an example similar to this.

If we had and article/motion, I don't care what we call it, that stated the Board was to receive $100/year then the Scope for an amendment would be $0-$100.  We couldn't amend at the meeting to make this $1000/year.  This is the easy example as it involves cash.  My example on canopy's was more of a challege to me and I thought or at least I thought I understood after Joshua's explanation.

Now I feel like I'm back to square one.

John

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On 9/23/2022 at 5:58 AM, John Cummings said:

You have all helped, but I love Joshua's explanation on how to determine if something is germane.  His explanation.  "Would you be surprised, yes or no?"   

This is not correct. I was addressing scope of notice. Germane amendments may very well surprise the absentee.

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On 9/23/2022 at 6:41 AM, John Cummings said:

Are we still referring to the same thing though?  I will never and I mean never know all the exact words that you folks use. In layman's terms I'm simply asking how do you know if an amendment to a proposed amendment is legal or illegal?

No, and now you have three questions rolled in here.

Legal or illegal: that's a question for a lawyer.

Germaneness: an amendment must, under all circumstances, be relevant to what it is amending. This is regardless of any notice requirement. It may well still be surprising but on topic. If a motion calls for an expenditure of $20,000 and I move to amend it to $25,000, it is germane.

Scope of notice: This applies where notice is required or has been given and has some effect, as to reduce the voting threshold. If notice is required, am amendment outside the scope is out of order. If notice reduces the voting threshold, an amendment outside the scope is permitted, but changes the voting threshold. An amendment is outside the scope if it surprises the absentee - if the absentee would not have known the outcome was a possible one based on the notice received.

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On 9/23/2022 at 8:22 AM, Joshua Katz said:

This is not correct. I was addressing scope of notice. Germane amendments may very well surprise the absentee.

Thanks Josh,

I give up. I don't think I will ever understand what is an acceptable amendment to a proposed and PROPERLY NOTICED bylaw change.  I'm never going to be a Robert's Rules Scholar and neither are the owners at my association. I can assure you, as little as I know, I'm one of the RONR Scholars at my association and I know very little.

If this question can't be answered in simple, laymans terms then nobody will ever understand amendment done during a meeting when the entire agenda was REQUIRED To be properly noticed, 21 days in advance of the meeting.  I'm not making this notice up, it is in the NH Condo Act - RSA 356B under meetings.

Thanks for all the help though.  

John

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On 9/23/2022 at 8:26 AM, Joshua Katz said:

No, and now you have three questions rolled in here.

Legal or illegal: that's a question for a lawyer.

Germaneness: an amendment must, under all circumstances, be relevant to what it is amending. This is regardless of any notice requirement. It may well still be surprising but on topic. If a motion calls for an expenditure of $20,000 and I move to amend it to $25,000, it is germane.

Scope of notice: This applies where notice is required or has been given and has some effect, as to reduce the voting threshold. If notice is required, am amendment outside the scope is out of order. If notice reduces the voting threshold, an amendment outside the scope is permitted, but changes the voting threshold. An amendment is outside the scope if it surprises the absentee - if the absentee would not have known the outcome was a possible one based on the notice received.

I came here with 1 question. And I thought it was a pretty simple example.

Now what I'm hearing is pretty much anything goes as far as amendments. You folks here might think it acceptable to make a last minute change at a meeting which 2/3 of the ownership is not aware of, but I certainly don't.

The good news is that our association has no choice but to separate the actually "ballot voting" meeting from the amendment/discussion meeting, so I really don't need to know what is legal, fair,acceptable, proper, allowed or whatever it is called.  If any amendment unreasonable, the owners will vote it down when the voting ballot comes out 30-60 days later.

Thanks again for the help.  

John

 

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On 9/23/2022 at 7:41 AM, John Cummings said:

Oh no -lol

Are we still referring to the same thing though?  I will never and I mean never know all the exact words that you folks use. In layman's terms I'm simply asking how do you know if an amendment to a proposed amendment is legal or illegal?

Let's forget the jargon.

Any amendment must be related to the subject of the main motion. If the motion is about beach canopies, then is an amendment about firepits related? That's a judgement call - is the subject just about canopies or about beach amenities in general? The chair makes the call but can be overruled by the meeting.

RONR doesn't normally have any requirement for notice - any motion can be brought up at any meeting (with very few exceptions - mostly about changing your bylaws or rules of procedure).

But if your rules require notice, as yours do, then another question comes up: Mr. Katz's "would you be surprised?"

The first question ("Is it related to the main motion?") still applies - it applies to all amendments - but now this question also applies.

Related ~= Germane

Surprise ~= Scope of notice

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