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ChadHammons Site Admin
Joined: 07 May 2008 Posts: 127
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Posted: Fri May 13, 2011 3:32 pm Post subject: More Bylaws clarifications |
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Two things.
1) The lawyer at the meeting said that members could not amend the bylaws without a year's notice. However, our Articles of Incorporation, Article XI states that bylaws can be amended within the time required to give notice of an annual meeting (10 days). Per our bylaws, members could call a special meeting to do such an amendment as well. It is not a 12 month process.
2) Our board has said that a director can occupy a third consecutive term because our bylaws didn't cover a spot being open at the time of election. Both our Articles of Incorporation and our Bylaws state directors may only serve 2 consecutive terms. Article IV, Section 7 says that if the office of a director becomes vacant due to disqualification or otherwise, the board shall elect his successor. Since the Articles and bylaws clearly list the 2 consecutive term "qualification", I would assume this would mean a disqualification of that board member.
I believe our bylaws do cover this case, which is counter to what the board said at the meeting. Since the board has referred me recently to our bylaws, I think it's fair we observe all articles equally, not just the ones we want to.
Last edited by ChadHammons on Fri May 13, 2011 3:49 pm; edited 1 time in total |
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stevehill
Joined: 14 May 2008 Posts: 9
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Posted: Fri May 13, 2011 3:45 pm Post subject: |
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I've been saying this for several years now. You can't pick and choose what you are going to follow and what you are going simple ignore. I did consult with an attorney with a situation that I had with the board. He said the exact same thing. The board has to enforce everything or nothing. The problem is that they don't care what the homeowners want and we have no recourse. People need to get involved. |
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ChadHammons Site Admin
Joined: 07 May 2008 Posts: 127
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Posted: Fri May 13, 2011 5:44 pm Post subject: |
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Having some discussion about this in the background, I should clarify that my statement "the board has said..." is just a parapharse of a conversation I had prior to the board meeting. It isn't exact, and may be clarified by the board. I was just referring to a conversation prior to the board meeting, and Rob's comments during the meeting where he said that board members were not released until they were replaced. There seemed to be some confusion over that point, though. Just trying to help point us in the right direction and keep us operating according to our own rules.
I don't think this was anything intentional! Maybe an oversight of certain clauses or interpretations of our bylaws and articles. Something worth clarifying. |
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ChadHammons Site Admin
Joined: 07 May 2008 Posts: 127
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Posted: Thu Jun 02, 2011 5:49 pm Post subject: |
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I didn't want to leave this open ended, so I wanted to post here a clarification that I got directly from the TX Attorney General's office*.
We cannot have a board member serving past his term limits, even if he was unopposed in the elections. That is because, as Anthony pointed out, when there is no specific clause in our bylaws, we have to defer to TX State law. Well, here is the law: http://www.statutes.legis.state.tx.us/Docs/BO/htm/BO.22.htm
Section 22.208 says (I'm summarizing here) that a director may continue to hold office if unopposed in an election unless our bylaws and/or articles of formation have a clause on term limits. Both of ours do. The law is pretty clear in this case.
This is low enough priority to the AG office, that they probably will not come after our HOA; however, as it was explained to me, this opens our HOA up to lawsuits of multiple types, including directly against the HOA for being in violation of state law, as well as actions the board takes while in violation of state law. I didn't think individuals could sue HOA for law violations directly, but apparently the TX laws on non-profit corporations (like our HOA) allow this type of lawsuit.
The board is now aware of this clause and have been for a couple of weeks. We're at the point where no one can claim ignorance past this point. So, board... are you really going to choose to stay in violation of state law and open the HOA up to lawsuits because of it?
*It is important to note that the TX AG office does not dispense legal advice. They just provided the factual meaning of the law, and factually what that means for any non-profit org that chooses to violate those laws. |
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steve
Joined: 21 Sep 2010 Posts: 25
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Posted: Thu Jun 02, 2011 11:35 pm Post subject: |
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Thanks for the leg work. Well board do we continue down this path? I'd also like to know what actions have been taken by the board since they atarted down this path. |
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steve
Joined: 21 Sep 2010 Posts: 25
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Posted: Mon Jun 13, 2011 11:59 am Post subject: |
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I thought that I would let everybody know what I'm finding as far as Rob staying on the board. I spent the last of last week and over the weekend talking to different attorneys that I know. One of which has worked for HOA's. They all agree that Rob staying isn't allowed. The only difference of opinion is how much legal problems will it cost us for him to stay. Most agree that as long as he is on the board that all actions that the board take can result in civil action against the HOA. What does this mean to the homeowners? Potentially higher dues as a result of having to fight civil suites. It could even mean that the HOA would be dissolved. All of the attorneys also had issues with the fact that deed restrictions aren't being consistently enforced. To a person they all said that they either have enforce everything or nothing and again this happens the HOA up to civil suite. Again could potentially cost all of us money. Most people in the community don't seem concerned about what is going on because it doesn't effect you. If we end up having legal issues it effects all of us. Rob and the board are relying on what on attorney has said. OR we willing to risk costing ourselves money because he and the board don't want to follow the rules?
Here's the problem with what I've found. The only way to make the board behave is to take them to court. I believe they are counting on the fact that none of us are willing to spend the money to do that. Do we really want it to come to that? It would be much easier and cheaper for all of us if Rob would just step down and the board would do the right thing.
I've asked for a ball park of what it would cost to do this. In case that is what needs to happen. I would prefer that the board wakes up and does the right thing. |
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michellelinn
Joined: 18 Jan 2010 Posts: 17
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Posted: Tue Jun 14, 2011 4:28 pm Post subject: |
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For those of you who are getting lawyers involved and want to follow the rules and are so set on removing Rob from his position, why didn't YOU volunteer for a position when they were begging for volunteers? Everyone at the meeting had the opportunity to step up and only ONE person did. And even if you weren't at the meeting, you got the ballet in the mail. _________________ Michelle Grant |
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steve
Joined: 21 Sep 2010 Posts: 25
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Posted: Tue Jun 14, 2011 9:44 pm Post subject: |
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I did put my name in the hat. For some of the same reasons that Rob should have to follow the rules I wasn't allowed. My wife is already on the board.
So are we saying that rules aren't important. Are we saying that it is ok for the board to expose our HOA to civil lawsuites. I'm not ok with that. We bought into an HOA for a reason. IF we are ok with the rules either not being followed or for the board to pick and chose what will be enforced why don't we just dissolve the HOA.
There are rules for a reason. There are term limits for a reason. We either want the rules or we don't. |
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pnr45
Joined: 17 Nov 2010 Posts: 11
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Posted: Sun Jun 19, 2011 8:02 pm Post subject: |
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This topic is unfortunately going to continue to be contentious until someone steps in with a firm decision and emaisl and forum discussions are much easier to ignore than open conversations and meetings.
Can the Board operate with one seat open until that position is filled? This way he could vacate the spot which he did offer if one of us chose to fill the position. My concern about stepping up is only being available for 3/4 of the meetings due to work travel as well as how do we get ourselves out of the position we are now in with these ongoing controversies - all probably unnecessary for such a young community with new homeowners moving into fairly regularly.
A group of interested parties should attend the next BOD meeting which should be July 7th |
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steve
Joined: 21 Sep 2010 Posts: 25
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Posted: Sun Jun 19, 2011 10:04 pm Post subject: |
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Only being abel to make 3/4 of the meetings if I remember right is acceptable. The board can't really function with 4 people. They could end up with a lot of ties and never get anything done.
They have had people that have stepped up for that position. For whatever reason Rob has decided that he needs to stay there and most of the board is backing that decision.
Yes it is sad that a development(I'm not calling it a community) is already having these problems.
The only way to make the board do the right thing is through legal action. There isn't a way according to the bylaws or deed restrictions to make them behave. It is sad that the board is willing to make this a legal fight. It shows that they don't have what is best for us as homeowners. From what I've been told is that any action the board takes with Rob still there could open the HOA up to civil action.Why would anybody that was truly representing the community even think about taking that risk if it wasn't needed.
If you can get enough people to commit to going to the board meeting I'll be there. Maybe that would put things back right with out having to fight it out.
I would love to see this develpoment become a community again. To do that we all need to follow the bylaws and deed restrictions that we all agreed to when we bought. They need to be fairly and consistently enforced. |
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ChadHammons Site Admin
Joined: 07 May 2008 Posts: 127
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Posted: Tue Jun 21, 2011 2:59 am Post subject: |
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To the person who asked why I didn't step up? Did you see my post about being cussed at by LPI's manager Tracy Goza? I have no desire to work with him on a day to day basis because of how he treats me and other homeowners. I'm not going to volunteer to be treated like that. Especially when certain board members actually believe he is RIGHT to do that!
As for Rob stepping down if someone wanted to step up.... Well, the truth of that is that someone did volunteer. I emailed Rob and the board about him, and was told basically they didn't care. So much for that statement, huh? |
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cvresident
Joined: 21 Jun 2011 Posts: 6
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Posted: Tue Jun 21, 2011 9:34 pm Post subject: |
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Chad that is horrible that you were treated that way by LPI and I do not blame you one bit for not wanting to subject yourself to that kind of treatment no one should be treated that way.
Rob needs to step down as his term is up! Why is he so special to be able to stay on after his term? We the home owners have to follow rules so the board members should follow both our Articles of Incorporation and our Bylaws.
Steve I totally agree with you on your comments and you sound like the person we NEED on our board!!!!! |
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steve
Joined: 21 Sep 2010 Posts: 25
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Posted: Wed Jun 22, 2011 12:34 pm Post subject: |
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I wish that I could serve. My wife is on the board so I can't. She has been fighting a lot of what Rob is doing and is the only board member that did not support him staying.
Agree that if we have to follow the rules then the board should also. I've been arguing with Rob about that very thing for a while. But especially over the last year. Unfortunately the only way to make them behave is through civil action as there is nothing in our bylaws to keep them honest. |
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