Missouri Board Amended Bylaws Illegally?

Question:

In August of 2022, our 3 member Board of Directors, changed a bylaw to our HOA Condominium Complex.

Our bylaw states “The board shall consist of 3 unit owners, not more than one who shall have an interest in the same building.”
The board amended to say “The board shall consist of 3 unit owners.” the rest was deleted about “interest in the same building.”

The board was advised by owners that owners had to approve a bylaw change (per Mo Non Profit Act) and MO statutes.

This change by the board, was submitted to our county recorder.

Some errors in the amended bylaw, (it appears they did not consult an attorney).
1. The bylaw is not recorded in our official name. It appears in the county record as a shorthand name, and it is the only document in the “unofficial name. It is the name the board used when filing the document.
2. This amended bylaw, in the official paperwork, is referred to as a Declaration change. It is referred to as the 5th amendment to the declaration. I think it should actually be the 1st bylaw amendment. Declaration change requires 100% of owners to pass.
Do either of the above make this change, obsolete?
Anyway, it is a poorly written document that has been filed with the County of record.
Our bylaws actually do say that a majority of the board can amend the bylaws. Five years ago an attorney gave a written opinion that this was not enforceable, and we follow the MO Non Profit Law. This was addressed with the board. They amended anyway. Owners were made aware at the annual meeting when they tried to push for a certain owner to be on the board.

Owners believe this action is unenforceable. The goal of the board was to try to get an owner elected to the board that was in the same building as a current board member, so they changed this bylaw in haste, and I think illegally.

Suggestions on how to handle this. Some owners want to remove the HOA president (following procedure).
We already have an attorney’s opinion, as well as the attorney’s sample of the correct way to amend a bylaw.
We also have a management company that clearly does not act in our best interest (encourages the board to do such things that are not in line with our bylaws and CC & Rs)
Thanks

– Theresa

 

Answer:

Hi Theresa,

A rule may generally be considered unenforceable if its enactment was procedurally flawed. If you wish to remove a director, you may do so according to the procedures outlined in the Missouri Nonprofit Corporation Act and within your governing documents. Should you encounter any pushback from the existing board, you may need to hire an attorney to help you take legal action.

Disclaimer: We are not lawyers. The information provided on this website does not constitute legal advice.

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