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Attyadvisor
Attyadvisor, Attorney
Category: Real Estate Law
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Experience:  25 years of experience in general practice, real estate law and estate law.
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I am the newly elected hoa board president of a 6 unit condo

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I am the newly elected hoa board president of a 6 unit condo complex in california. I discovered that 2 different versions of our bylaws are being used by the members. i am an original owner and have my bylaws dated 1984. The other set has been modified, has no date and the table of contents does not match the document. Who decides which version the association will use?
Submitted: 10 months ago.
Category: Real Estate Law
Expert:  Attyadvisor replied 10 months ago.

Welcome and thank you for your question. I will be the professional that will be assisting you.

have you checked to see if the amendments were recorded?

Customer: replied 10 months ago.

I rented out my condo for 6 years and am back living there. Sometime during those 6 years "someone" rewrote our bylaws. There is no record that anything was recorded. It is my understanding that bylaws are not recorded in Calif only the CC&rs are recorded.


 

Customer: replied 10 months ago.

Did you get my last message?

Expert:  Attyadvisor replied 10 months ago.

Yes I received your message. I apologize my response was cut off while I was editing. There have been technical issues with the site. Thank you for your patience.


You are 100% correct the amendments are not required to be recorded.


The key is to determine how these amendments came to pass as some amendments require a vote of the members and others can be established by a vote of the board.


Amendment. The voting requirements for membership approval of bylaw amendments and restatements are normally found in an association's bylaws. In the event the bylaws fail to include an amendment provision, they may be amended by a majority of those members voting once a quorum has been established. (Corp. Code §7150(b).) Certain elements of the bylaws may be amended by the board, other elements require membership approval. (Corp. Code §7150.)

Effective Upon Notice. Bylaw amendments are not filed with the state nor are they recorded, nor do they need to be signed to be effective. Bylaw amendments and restatements are effective upon notice to the membership.
Read more: Bylaw Amendments http://www.davis-stirling.com/tabid/3522/Default.aspx#ixzz2jdfnQW3A
.

Can you go back through the minutes of the meetings history to see how these new amendments were established?

It is not so much of a question of who decides, it is rather a question of whether the amendments are valid.

Has the Association kept all of the meeting minutes and other documentation?

Customer: replied 10 months ago.
Relist: Other.
I never got an answer. The expert asked for more information and after I supplied more info......nothing!
Expert:  Attyadvisor replied 10 months ago.
Can you see my response?
Customer: replied 10 months ago.

Unfortunately, no minutes were kept for the past 6 years, since I moved away. That is why I decided to become president when I moved back.

 

Do you see this?

Expert:  Attyadvisor replied 10 months ago.

Yes I see your response. Again please accept my apology for the technical issues.

 

Oh my goodness. That is a huge failure on the part of the past board.

 

The Davis Stirling Act is the governing law for all common interest developments in California http://www.davis-stirling.com/#axzz2jdeV8Dih

This an actionable breach of the fiduciary duty of the past the board.


If you cannot establish the validity of the amendments only those bylaws that were properly put into place would be apply.



You are correct the board cannot decide to use a set of bylaws unless there is evidence that the amendments were put into place pursuant to the requirements in the governing documents.

How far do you need to go to find adequate record keeping?

Customer: replied 10 months ago.

For 22 years our association was "self managed". All 6 units were owner occupied and we all got along and had meetings and all members helped to make decisions. 6 years ago, 2 units were sold and the new board excluded the absentee owners from the meetings and started using a Management company, who obviously didn't do their job.


 


When I became president 6 months ago, we got a new management company. And, I am working with this new company to get our association working.


 


There are billing records for 6 years from the previous management company.


But, all records prior to 2000 that were sent to them, have disappeared.


 


So, I have a big job ahead of me.

Expert:  Attyadvisor replied 10 months ago.
What a mess.


You are correct on the bylaws. We have no idea how these amended bylaws were put into place. Unless their validity can be established they are not valid.

That is why record keeping is vital.



Please do not hesitate to ask me any additional questions that you may have with regard to this matter. It would be my pleasure to continue to assist you.

Thank you for using JA!

Customer: replied 10 months ago.

Thank you. I will do my best to move forward in order to protect the hoa with the help of the new Management company.


 


Now, how do I give you a positive rating?

Expert:  Attyadvisor replied 10 months ago.

An experienced management company can make all the difference in the world.

 

Thank you.

 

Please do not hesitate to return to this question at any time with any follow up questions that you may have for me. The rating options should display.


Thank you for using JA!

Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 3601
Experience: 25 years of experience in general practice, real estate law and estate law.
Attyadvisor and 7 other Real Estate Law Specialists are ready to help you
Expert:  Attyadvisor replied 10 months ago.
Thanks again!

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