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CalAttorney2
CalAttorney2, Lawyer
Category: Real Estate Law
Satisfied Customers: 10238
Experience:  I am a civil litigation attorney with experience representing HOAs, homeowners, businesses and others in real estate matters.
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Amending Bylaws. Our Bylaws state they may amended at a

Customer Question

Amending Bylaws. Our Bylaws state they may amended at a regular or special meeting of the Members by a vote of at least two-thirdss of the votes appurtenant to all of the Lots (137), present at a duly called meeting of the members at which a quorum is presnet in person or by proxy. Does this mean it must be passed by 2/3 of the Lot Owners or 2/3 of the Voting Owners and Proxies at the meeting?
Submitted: 6 months ago.
Category: Real Estate Law
Expert:  P. Simmons replied 6 months ago.

Hello! My name is ***** ***** I am a licensed attorney with more than 18 years of experience. I am here to assist you with your questions. Please understand that if I ask you for additional information, you are NOT charged again and our communications are NOT timed. So please see this as a relaxed conversation between friends. I am here to help

Also, if you would like to chat on the phone, let me know and I can make that happen.

It means that 2/3 of all votes cast in that ballet (either by folks who show up or who have proxy)

Please let me know if you have more questions. I am happy to help if I can. Otherwise, please rate the answer so I may get credit for my work.

Customer: replied 6 months ago.
if the quorum is 30% (41) only 27 votes could amend the Bylaws. Is that correct?
Expert:  P. Simmons replied 6 months ago.

Correct. The way your bylaws are currently written, they need quorum to vote.

You could amend the bylaws to require that the 2/3 be from all lots if you liked. But they way you have it now, the 2/3 is from the folks who attend the meeting or give proxy

Please let me know if you have more questions. I am happy to help if I can. Otherwise, please rate the answer so I may get credit for my work.

Customer: replied 6 months ago.
The NC Statutes states the following. If the statutes take precedence, does it mean that it must be 2/3 of the Lot Owners rather than the quorum?
For planned communities, except in cases of amendments that may be executed by a declarant under the terms of the declaration or by certain lot owners under G.S. 47F-2-118(b), the declaration may be amended only by affirmative vote or written agreement signed by lot owners of lots to which at least sixty seven percent (67%) of the votes in the association are allocated, or any larger majority the declaration specifies or by the declarant if necessary for the exercise of any development right. The declaration may specify a smaller number only if all of the lots are restricted exclusively to nonresidential use. (NCGS § 47F-2-117(a)) Further, NCGS § 47F-2-117(d) provides that “any amendment passed pursuant to the provisions of this section or the procedures provided for in the declaration are presumed valid and enforceable.” These provisions apply retroactively to older associations.
For condominium associations created on or after October 1, 1986, except in cases of amendments that may be executed by a declarant, the association, or certain unit owners, the declaration may be amended only by affirmative vote of or a written agreement signed by, unit owners of units to which at least sixty seven percent (67%) of the votes in the association are allocated or any larger majority the declaration specifies. The declaration may specify a smaller number only if all of the units are restricted exclusively to nonresidential use. (NCGS § 47C-2-117(a))
Expert:  P. Simmons replied 6 months ago.

Sorry...is that a question? Or, what is the question?

Expert:  P. Simmons replied 6 months ago.

That is, are you asking if the NC law will apply to your association?

Customer: replied 5 months ago.
I'm asking if the two paragraphs from the NC statutes refering to a declaration includes the bylaws. Our Board passed Amended and Restated Bylaws using the interpretation you gave above. It passed by one vote. At the meeting we were told the bylaws were not a legal document and could be amended easily (2/3 of a quorum). However, the new bylaws changed the standard to 2/3 of all the lot owners! The new document was not gone over at the meeting. They just discussed a summary and didn't include this change.
Expert:  CalAttorney2 replied 5 months ago.

Dear Customer,

Thank you for using our forum. My name is***** am another expert on the forum (your previous expert opted out, this sometimes happens). I hope to assist you with your HOA matter today.

I am not sure why your HOA legal counsel gave their opinion regarding a quorum as opposed to a supermajority as required by statute for the amendment of the by-laws, as such an interpretation is contradictory to well established interpretation of state law.

Contrary to what you posted, the by-laws are very much considered "legal documents" and any statement to the contrary is either a misunderstanding or a misrepresentation (I would hope the former is the case).

The only plausible explanation that I can infer would be that your specific HOA documents provide for a lesser standard (there is a provision in the state statute that allows for the HOA to provide for a reduced standard to pass an amendment to the documents, but this is not commonly done as it greatly impedes the protections for individual homeowners).

For a discussion of what exactly the by-laws are, see: http://nchoalaw.blogspot.com/

You have already posted the most relevant interpretation of the state statute, I do not believe I can add anything further, it clearly states what is the law in North Carolina.

Customer: replied 5 months ago.
It does say it applies to a declaration. Does that include bylaws?
Expert:  CalAttorney2 replied 5 months ago.

My apologies, but to be clear, when you say "It" says it applies to the declaration, what specifically are you referring to?

(Are you asking about the statute or does your governing documents make a specific allowance for a reduced voting threshold to amend your declaration?)

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