Amending Bylaws

[Guest Catty]

Is an association is adopting new bylaws - not a single amendment to existing Bylaws - what is the voting required to pass them?

 

 

 

[Gary Novosielski]

Is this a new organization adopting bylaws for the first time, or an existing association adopting a full-scale revision to its old bylaws?

Brand new bylaws which bring a new society into existence require only a majority vote to adopt.

Subsequent changes, including a general revision, should be governed by rules included in the bylaws.  If the bylaws somehow neglected to include this, amendments require previous notice and a two-thirds vote, or alternatively a vote of a majority of the entire membership.  For additional rules, consult RONR (12th ed.) §57.

[Guest Cathy]

The Association is adopting a full scale revision to our current Bylaws. Our certificate of Incorporation requires 2/3 majority vote to make and adopt Byalws. Our Bylaws say we need 2/3 of quorum for an amendment. But this is not an amendment. It is a major rewrite. As a follow up on the 2/3 vote:

If there are 99 members...then does a 2/3 majority mean that 66 must vote YES or does it mean that 66 must vote and 34 must say YES. 

If it is a majority of the members, would that be 50?

 

[Joshua Katz]

On 3/12/2023 at 4:31 PM, Guest Cathy said:

Our certificate of Incorporation requires 2/3 majority vote to make and adopt Byalws. Our Bylaws say we need 2/3 of quorum for an amendment. But this is not an amendment. It is a major rewrite.

While certain procedures vary for a revision, the vote required is the vote required for an amendment.

On 3/12/2023 at 4:31 PM, Guest Cathy said:

If there are 99 members...then does a 2/3 majority mean that 66 must vote YES or does it mean that 66 must vote and 34 must say YES. 

 

Neither. A 2/3 vote (not a 2/3 majority, because that is a contradiction) means twice as many, or more, voting in the affirmative as the negative. So one yes, 0 no, and the rest abstaining is sufficient.

 

On 3/12/2023 at 4:31 PM, Guest Cathy said:

If it is a majority of the members, would that be 50?

 

If there are 99 members, then 50 is a majority of the entire membership, yes.

[Josh Martin]

On 3/12/2023 at 3:14 PM, Guest Catty said:

Is an association is adopting new bylaws - not a single amendment to existing Bylaws - what is the voting required to pass them?

On 3/12/2023 at 4:31 PM, Guest Cathy said:

The Association is adopting a full scale revision to our current Bylaws.

Based on these facts, the same vote would be required as any other amendment to the bylaws.

On 3/12/2023 at 4:31 PM, Guest Cathy said:

Our Bylaws say we need 2/3 of quorum for an amendment.

Then it would seem you have your answer. But could you quote exactly what that provision in your bylaws says? I certainly hope "2/3 of quorum" is not an exact quote.

On 3/12/2023 at 4:31 PM, Guest Cathy said:

But this is not an amendment. It is a major rewrite.

A "rewrite," which is called a "revision" in RONR, is a form of amendment.

On 3/12/2023 at 4:31 PM, Guest Cathy said:

As a follow up on the 2/3 vote:

If there are 99 members...then does a 2/3 majority mean that 66 must vote YES or does it mean that 66 must vote and 34 must say YES. 

If it is a majority of the members, would that be 50?

As a general matter, a majority vote means that more than half of the members present and voting vote in the affirmative. A 2/3 vote means that at least two-thirds of the members present and voting vote in the affirmative. 

But I cannot definitively say what the requirement is for your organization without seeing the exact language in your bylaws regarding the requirements for amending them.

[Richard Brown]

Guest, Catty, please tell us EXACTLY what your bylaws say about the vote needed to amend the bylaws.  Please don't paraphrase, but copy the provision verbatim. And please quote the whole provision regarding the vote requirement, not just a few words of it.

[Guest Cathy Guest]

On 3/12/2023 at 11:14 PM, Richard Brown said:

Guest, Catty, please tell us EXACTLY what your bylaws say about the vote needed to amend the bylaws.  Please don't paraphrase, but copy the provision verbatim. And please quote the whole provision regarding the vote requirement, not just a few words of it.

 

On 3/12/2023 at 7:07 PM, Josh Martin said:

 

But I cannot definitively say what the requirement is for your organization without seeing the exact language in your bylaws regarding the requirements for amending them.

1. Our Bylaws say: 

"ARTICLE VII – AMENDMENTS
These Bylaws may be amended by two-thirds vote of members present in person or by proxy at any Association meeting at which a quorum is present, provided that advance notice of at least 10 days of the amendment proposal has been given to each Association member. No amendment shall be effective retroactively. A future effective date may be stipulated in an amendment proposal; if a date is not stipulated, the amendment shall become effective immediately upon its passage."

 

2. It also talks about mail voting vs. voting at a meeting:

"Section 7. If it becomes necessary for the Association membership to act on any matter of business, and if, in the judgment of the Board, an Association meeting would be inconvenient or unnecessary, a mail vote of members may be taken, provided that each member be fully informed of the details of the proposed matter of business. Decision may be reached only by return of ballots by not less than one-third of all Association members within the time stipulated by the Board and stated in the mail-vote notice.

Section 8. In any Association meeting or mail vote of the membership, decision on each question or proposal shall, unless otherwise required by law or stipulated in these Bylaws, be by majority vote of members present at the meeting in person or by proxy or of members voting by mail. Voting at meetings shall be oral, except that the President shall conduct a roll-call vote or a secret ballot if either be requested by any member present."

This section is relevant because they are planning to send this out via mail. 

3. Our Certificate of Incorporation says about Bylaws voting: 

To make and adopt by-laws, by two-thirds (2/3) majority vote, containing rules for the administration, government, suspension, and expulsion of its members; the imposition of fines and penalties not exceeding the sum of Twenty-five Dollars ($25.00); the levying of assessments or dues to further the purposes and objects of the corporation; the election of its officers and board of management and defining their property and funds; and for the voluntary dissolution of corporation, not inconsistent with the laws of the State of Connecticut or the United States of America.

 

4. CT State law states the following: 

"Sec. 47-236. Amendment of declaration or bylaws. (a) Except in cases of amendments that may be executed by a declarant under subsection (f) of section 47-228 or section 47-229, or by the association under section 47-206, subsection (d) of section 47-225, subsection (c) of section 47-227, subsection (a) of section 47-231 or section 47-232, or by certain unit owners under subsection (b) of section 47-227, subsection (a) of section 47-231, subsection (b) of section 47-232, subsection (b) of section 47-237 or section 47-242, or by the executive board under subsection (k) of this section, and except as limited by subsections (d) and (f) of this section, the declaration, including any surveys and plans, may be amended only as follows:

(1) By vote or agreement of unit owners of units to which at least sixty-seven per cent of the votes in the association are allocated, unless the declaration specifies either a larger percentage or a smaller percentage, but not less than a majority, for all amendments or for specific subjects of amendment;

(2) The declaration may provide that all amendments or specific subjects of amendment may be approved by the unit owners of units having any of the percentages of votes, as provided in subdivision (1) of this subsection, of a specified group of units that would be affected by the amendment, rather than all of the units in the common interest community; or

(3) The declaration may specify a smaller number only if all of the units are restricted exclusively to nonresidential use.

(b) No action to challenge the validity of an amendment adopted by the association pursuant to this section may be brought more than one year after the amendment is recorded.

(c) Every amendment to the declaration shall be recorded in every town in which any portion of the common interest community is located and is effective only on recordation. An amendment, except an amendment pursuant to subsection (a) of section 47-231, shall be indexed in the grantee's index in the name of the common interest community and the association and in the grantor's index in the name of the parties executing the amendment.

(d) Except in the case of the exercise of development rights pursuant to section 47-229 or to the extent otherwise expressly permitted or required by other provisions of this chapter, with respect to a common interest community, whether created before, on or after January 1, 1984, no amendment may create or increase special declarant rights, increase the number of units or change the boundaries of any unit or the allocated interests of a unit, in the absence of unanimous consent of the unit owners.

(e) Amendments to the declaration required by this chapter to be recorded by the association shall be prepared, executed, recorded and certified on behalf of the association by any officer of the association designated for that purpose or, in the absence of designation, by the president of the association.

(f) An amendment to the declaration may prohibit or materially restrict the permitted uses or occupancy of a unit or the number or other qualifications of persons who may occupy units only by vote or agreement of unit owners of units to which at least eighty per cent of the votes in the association are allocated, unless the declaration specifies that a larger percentage of unit owners must vote or agree to that amendment or that such an amendment may be approved by the unit owners of units having at least eighty per cent of the votes of a specified group of units that would be affected by the amendment. An amendment approved under this subsection must provide reasonable protection for a use or occupancy permitted at the time the amendment was adopted.

(g) The time limits specified in the declaration pursuant to subdivision (8) of subsection (a) of section 47-224, within which reserved development rights and special declarant rights must be exercised may be extended, the number of units may be increased and new development rights or other special declarant rights may be created by amendment to the declaration if persons entitled to cast at least eighty per cent of the votes in the association, including eighty per cent of the votes allocated to units not owned by the declarant, agree to that action. The amendment must identify the association or other persons who hold any new rights that are created. Notice of the proposed amendment to the declaration must be delivered in a record to all persons holding development rights or security interests in those rights. Notwithstanding the provisions of subsection (c) of this section, the amendment to the declaration is effective thirty days after the amendment is recorded and notice is delivered unless any of the persons entitled to notice under this subsection records an objection in a record within the thirty-day period, in which case the amendment is void, or unless all of the persons entitled to notice under this subsection consent in a record at the time the amendment is recorded, in which case the amendment is effective when recorded.

(h) Provisions in the declaration creating special declarant rights that have not expired may not be amended without the consent of the declarant.

(i) If any provision of this chapter or of the declaration or bylaws of any common interest community created before, on or after January 1, 1984, requires the consent of a person holding a security interest in a unit as a condition to the effectiveness of any amendment to the declaration or bylaws, that consent shall be deemed granted if a refusal to consent in a record is not received by the association within forty-five days after the association delivers notice of the proposed amendment to the holder of the interest or mails the notice to the holder of the interest by certified mail, return receipt requested. The association may rely on the last-recorded security interest of record in delivering or mailing notice to the holder of that interest. Notwithstanding any provision of this section, an amendment to the declaration or bylaws that affects the priority of a holder's security interest, other than an amendment regarding the priority of the association's lien authorized by section 47-258 or the ability of that holder to foreclose its security interest may not be adopted without that holder's consent in a record if the declaration or bylaws require that consent as a condition to the effectiveness of the amendment.

(j) If the declaration or bylaws of a common interest community, whether created before, on or after January 1, 1984, contains a provision requiring that amendments to the declaration or bylaws, other than amendments described in subsection (d) of this section, may be adopted only by the vote or agreement of unit owners of units to which more than eighty per cent of the votes in the association are allocated, such a proposed amendment shall be deemed approved if:

(1) (A) Unit owners of units to which more than eighty per cent of the votes in the association are allocated vote for or agree to the proposed amendment;

(B) No unit owner votes against the proposed amendment; and

(C) Notice of the proposed amendment is delivered to the unit owners holding the votes in the association that have not voted or agreed to the proposed amendment and no objection in a record to the proposed amendment is received by the association within thirty days after the association delivers notice; or

(2) Unit owners of units to which more than eighty per cent of the votes in the association are allocated vote for or agree to the proposed amendment but at least one unit owner objects to the proposed amendment and, pursuant to an action brought by the association in the Superior Court against all objecting unit owners, the court finds that the objecting unit owner or owners do not have a unique minority interest, different in kind from the interests of the other unit owners, that the voting requirement of the declaration was intended to protect.

(k) (1) The executive board may, by a vote of a majority of the members of said board at a meeting held pursuant to section 47-250, amend the declaration of a common interest community to remove from such declaration a provision that purports to restrict ownership or occupancy of units within the common interest community on the basis of race.

(2) If a unit owner submits a written request to the executive board for an amendment to the declaration to remove a provision that purports to restrict ownership or occupancy of units within the common interest community on the basis of race, the board shall, not later than ninety days after receipt of such a request, hold a meeting to determine whether such a provision exists in the declaration and should be removed pursuant to the provisions of subdivision (1) of this subsection."

...I believe the above are all of the relevant items. 

[Guest Cathy Guest]

also - this is how the new bylaws will read if the Bylaws pass. Any mention of voting for bylaws is removed from the COI.

Section 18.1 – Amendments by Lot Owners.
These Bylaws may be amended if the Votes (defined in Section 2.17) cast by Lot Owners
in favor of the amendment exceed fifty percent (50%) of all of Votes allocated to Lot Owners.
Such vote may be taken at any Annual Meeting or special meeting of Lot Owners or by vote by
ballot without meeting. If the vote is taken at an Annual Meeting or special meeting, Lot Owners
shall also be provided the opportunity to vote by paper or electronic ballot to be counted at such
meeting and the provisions of Section 5.2 (b) through d (iii) shall apply to the delivery of the
paper or electronic ballot. The notice of any meeting at which amendment of the Bylaws is to be
considered shall include the text of the proposed amendment, addition, or deletion. If the
amendment is to be presented to Lot Owners for a vote by ballot without meeting, the ballot shall
include the text of the proposed amendment, addition or deletion.

[Josh Martin]

On 3/13/2023 at 5:36 PM, Guest Cathy Guest said:

These Bylaws may be amended by two-thirds vote of members present in person or by proxy at any Association meeting at which a quorum is present, provided that advance notice of at least 10 days of the amendment proposal has been given to each Association member.

2. It also talks about mail voting vs. voting at a meeting:

"Section 7. If it becomes necessary for the Association membership to act on any matter of business, and if, in the judgment of the Board, an Association meeting would be inconvenient or unnecessary, a mail vote of members may be taken, provided that each member be fully informed of the details of the proposed matter of business. Decision may be reached only by return of ballots by not less than one-third of all Association members within the time stipulated by the Board and stated in the mail-vote notice.

Section 8. In any Association meeting or mail vote of the membership, decision on each question or proposal shall, unless otherwise required by law or stipulated in these Bylaws, be by majority vote of members present at the meeting in person or by proxy or of members voting by mail. Voting at meetings shall be oral, except that the President shall conduct a roll-call vote or a secret ballot if either be requested by any member present."

This section is relevant because they are planning to send this out via mail. 

Thank you. Based on these additional facts, my view of these sections taken together is that when voting on bylaw amendments by mail, then in order for the amendments to be adopted:

• A minimum of one third of the total number of association members must return ballots in order for the vote to be valid.
• At least two-thirds of the votes cast must be in the affirmative.