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Richard - Bizlaw
Richard - Bizlaw, Attorney
Category: Business Law
Satisfied Customers: 8764
Experience:  30 years of corporate, litigation and international law
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In 2011 and 2012 many new Texas laws came into effect for non

Resolved Question:

In 2011 and 2012 many new Texas laws came into effect for non profit corp assoc's under a population of 2.8 million. We're involved in modifying the corporations governing documents to be current with the law changes.

Can you give the "specific law" that allows the board to make these changes in the governing documents.

Example: new law says you can only swim on Fridays. We want to change the bylaws & C&R's to reflect the new law.
Submitted: 1 year ago.
Category: Business Law
Expert:  Richard - Bizlaw replied 1 year ago.

bizlaw :

Hello, I will try to help you. Please remember I just report or interpret the law, so the outcome may not be what you hoped for. The board of directors have the power to amend the bylaws unless (1)


this chapter or the corporation's certificate of formation wholly or partly reserves the power


exclusively to the corporation's members;


(2) the management of the corporation is vested in the corporation's members; or


(3) in amending, repealing, or adopting a bylaw, the members expressly provide that the board of


directors may not amend or repeal the bylaw.

bizlaw :

The relevant statute is 22.102.


If I have answered all your questions, please rate my answer excellent as that is how I am compensated. If you have more questions, please let me know. If my answer was particularly helpful you can pay a bonus.

Customer:

One of the new laws that deal with recording of governing docs before they are considered valid, 22 - 006 eff 2011/2012. Some of the original gov docs are very old '83 and have never been filed. In 1999 there was a law to file gov docs, but the board didn't do it. So, with the current law stating "if its not recorded-its not valid". Can we update the doc to conform with the new laws and do the right thing and file it...finally. We would also like to make a few minor changes that would make it more acceptable to 2013 issues. Do you think that Is that ok to make these changes?

Expert:  Richard - Bizlaw replied 1 year ago.

I changed to this format because I could not see your response in chat.

 

 

Since the Board has the power to change the governing documents, you can do so and file them. As part of the meeting that you have to change the governing documents, you should also have the board ratify all actions taken since 1999 when the governing documents should have been filed and then file the new documents.

 

If I have answered all your questions, please rate my answer excellent as that is how I am compensated. If you have more questions, please let me know. If my answer was particularly helpful you can pay a bonus.

Richard - Bizlaw, Attorney
Category: Business Law
Satisfied Customers: 8764
Experience: 30 years of corporate, litigation and international law
Richard - Bizlaw and other Business Law Specialists are ready to help you
Customer: replied 1 year ago.

On the b laws, there have been several copies floating around and it is not absolutely known which ones are to be considered the "real ones", remember this goes back to 1983.


 


202 006 states governing docs are not valid until recorded.


 


With those two concepts; where there are several copies of b laws floating around and they needed to be recorded to be valid, please let me know if you think this will fly? Or if it went in front of a judge, it might prevail.


 


There has been a board that intentionally changed the C and R to conflict with the b laws for their personal benefit. The law says if there is a conflict, the C and R prevail. We want to prohibit that type of action in the future.


 


We feel it is time to get these bylaws finally recorded. We want to take the versions of the b laws, review to find the best parts, create final docs and record them. We would add a protection paragraph for the issue that the past board tried to get away with to protect the membership from loss and unfair actions.

Expert:  Richard - Bizlaw replied 1 year ago.
Does this non profit relate to a home owner's association or is it some other type of non profit?
Customer: replied 1 year ago.

yes p o a

Expert:  Richard - Bizlaw replied 1 year ago.
There is a difference between covenants and bylaws. As I explained, bylaws may be changed by the board depending on what the governing documents say. However, covenants which create the home owners association can only be changed by action of the homeowners because the covenants are incorporated into the deeds of every homeowner. Board action purporting to change covenants without a membership vote and it takes a super majority vote to do it, changes to covenants would be void. Your bylaw change should make clear that changes to covenants by a prior board are without effect and that changes to the covenants can only be done through a vote of the membership.Rules and bylaws can be changed by the Board but not the covenants.

With the foregoing in mind, you can do as you propose.

If I have answered all your questions, please rate my answer excellent as that is how I am compensated. If you have more questions, please let me know. If the answer was especially helpful you can provide a bonus.
Customer: replied 1 year ago.

Wow great help!


 


But, in our old C and R 1983, it states the board can change C and R. Can they?


 


Do you have a Texas law number for this that only allows C and R to be changed by members, not board. Possibly the original C and R were never legal. (below):


 


You wrote: However, covenants which create the home owners association can only be changed by action of the homeowners because the covenants are incorporated into the deeds of every homeowner.

Expert:  Richard - Bizlaw replied 1 year ago.
The covenants are in the Declaration that forms the association. Section(NNN) NNN-NNNNh) of the Real Property Code provides that to amend the declaration you need 67% of the total votes allocated to the property owners. There are some exceptions but you can look at that section to see if you fall within any of the exceptions. I am assuming that all property within the association must be a member of the association. In other words no body can opt not to be subject to the property owners association. If this assumption is correct then Title 11 Section 209 of the Property Code applies to your association.

I strongly suggest that your association retain an attorney to ensure that you are following the applicable law.

If I have answered all your questions, please rate my answer excellent as that is how I am compensated. If you have more questions, please let me know. If the answer was especially helpful you can provide a bonus.
Richard - Bizlaw, Attorney
Category: Business Law
Satisfied Customers: 8764
Experience: 30 years of corporate, litigation and international law
Richard - Bizlaw and other Business Law Specialists are ready to help you
Customer: replied 1 year ago.

Thank you!!! Great help! Look forward to working with more in the future!

Expert:  Richard - Bizlaw replied 1 year ago.
I am glad I can be of help. Just start your question with Bizlaw and I will respond. Good luck and thank you for the excellent rating.
Customer: replied 1 year ago.

Bizlaw, one more question.


 


With the new state laws, when they conflict with our governing docs, do we just amend those sections, or do we have to go through a big legal process or 67% vote?


 


What is the law number for this?


 


Thanks again!!!

Expert:  Richard - Bizlaw replied 1 year ago.
You only need 67% vote to change what are called restrictive covenants that govern the deed. Rules and regulations and bylaws do not need owner votes unless the governing documents say otherwise. It is unlikely that the restrictive covenants have to be modified because of state laws. The rules and regulations and bylaws can be modified by the Board but even if not modified the state law will still govern. You also have to be sure that the state law applies to your situation.
Customer: replied 1 year ago.

In our old C & R, it allows the board to change them C & R.


 


It also states if there is a conflict between the by laws and C & R, that the C& R prevail.This is the problem.


 


 


There is an issue that a past corrupt board modified the C & R in 2009 which denies some members their right to vote. 209 and 0059. We just want to make it right for all members.


 


Do you know the law number that would allow us to amend that C and R that conflicts with the state law without a big legal process or a 67% vote?

Expert:  Richard - Bizlaw replied 1 year ago.
The way you deal with that problem is to take the position that the Board acted improperly in violation of the law and republish the covenants to what they were originally. During the period the POA was controlled by the developer he could have retained the right to modify the covenants which would be legal. In that case you would need to get the vote of 67% to change the covenants. Rules and bylaws can be changed by the board. Because your position is too complex to properly address in this type of forum, you do need to retain a local attorney to review your records. He can then advise you on what you need to change and if there is anything for which you need owner approval and not just board approval.
Customer: replied 1 year ago.

Ok...great!


 


When it says "call" a meeting, does that merely mean that you "call for” a meeting or that you actually “have” a meeting in 209 and 014 and 22 dot 154


 


We are involved with a group that insisting they followed the law because the 'called for meeting", even though they didn’t have a meeting

Expert:  Richard - Bizlaw replied 1 year ago.
You must have a meeting not just call for one. At the meeting a quorum must be present to take any action at the meeting. So if the meeting is called but no one comes who is entitled to vote, no action can take place because there is no quorum.
Richard - Bizlaw, Attorney
Category: Business Law
Satisfied Customers: 8764
Experience: 30 years of corporate, litigation and international law
Richard - Bizlaw and other Business Law Specialists are ready to help you
Expert:  Richard - Bizlaw replied 1 year ago.
Hi Tim


I'm just following up with you to see how everything is going. Did my answer help?


Let me know,if you have any more questions.
Bizlaw

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