1990 MA Draft Bylaws
Click here to view the recorded 1990 MA Bylaws drafted by the Developer, along with the Affidavit in .PDF
Entry 851424 Book 1942 Page 1483
Bylaws are the written rules governing the structure and operation of a corporation. They can apply to both profit and non-profit businesses viz. homeowners associations. All states require corporations to have bylaws, while none require corporations to file them. Corporations are required to maintain updated bylaws as approved by their boards of trustees and the members. However, if a non-profit corporation really wants to file their bylaws with their other corporate paperwork and their state accepts them — they should do so as a matter of public record.
Function and Recording of Bylaws: Other than the Corporate Charter or Articles of Incorporation, the Bylaws of an organization are its most important document…Bylaws are the vital documents that protect the members and their organization. They relate to the fundamental structure of the organization, its composition, and its functions. They include the rights and obligations of members and officers whether present or absent, and the rights of the minority as well as the majority. The provisions within the Bylaws are of such importance that they cannot be suspended even by unanimous consent unless the documents provide for their own suspension, or in the case of Homeowners Associations are being replaced by the majority vote of the Members.
Bylaws, by common practice, are presumed to be valid as permanent law of the organization. Since the MA does not have a standing committee on Bylaw review and concurrency it has not updated, amended, or replaced the 1990 Developers Draft Bylaws. The MA has the responsibility to continually review the State laws and their Bylaws’ adherence in view of changes in circumstances and current actions of the Association, and to make recommendations to the Members at-large for changes and updates.
Updating and approval of Bylaw changes requires a majority vote of the 504 General Members. Having Bylaws written and recorded provides the MA a basic foundation for compliance to State law requirements for HOA administration and regulation. The MA, now a Corporation only, has the responsibility of finalizing the draft, making needed updates and recommending changes, obtaining the majority vote of the General Members at their November 2008 meeting, and re-submitting the fully executed Amended Bylaws for recording at the Summit County Clerk’s office.
The twelve Silver Springs Community member subdivisions, including Silver Springs Single Family subdivision, each have their own set of Articles of Incorporation and Bylaws, each are recorded at the Summit County Recorder’s Office.
From David Ure, 1993-2006 State Legislature Administrative Rules Review Committee Chair:
“The reason for having Bylaws is very important . They keep you from getting sued. Bylaws will mean everyone gets treated the same. When you turn someone down for a request to do something, you can reference the bylaws and have a legal reason for doing so. The state and county need a copy to prove you are a legal organization doing business for a group of people.”
Master HOA April 20, 2009 Minutes: “Bill Noland found a 1990 copy of the Developers Draft Bylaws for a MHOA which are the same as the recorded unsigned copy. Bill N. motioned to accept and to follow these Bylaws until new ones are approved by the General Membership, are then signed by the 13 subdivision presidents, and again recorded at the Summit County Recorder’s Office. Nancy Samson seconded the motion. All present were in favor, the motion carried.”
Utah Code – Title 16 – Chapter 06a – Utah Nonprofit Corporation Act Section 16-6a-206. “Bylaws. (1c) if neither the incorporators nor the board of directors have adopted initial bylaws, the Members, if any, may adopt initial bylaws. (2) The bylaws of a nonprofit corporation may contain any provision for managing the business and regulating the affairs of the nonprofit corporation that is not inconsistent with law or the articles of incorporation, including management and regulation of the nonprofit corporation in the event of an emergency.”
DEVELOPERS 1990 DRAFT FOR THE
BYLAWS
OF
SILVER SPRINGS MASTER HOMEOWNERS ASSOCIATION
ARTICLE I
IDENTITY
These are the Bylaws of Silver Springs Master Homeowners Association, hereinafter referred to as the “Association”, duly made and provided for in accordance with the Utah Non-Profit Corporations Act. The office of the Registered Agent of the Association shall be located at: The office of Lynn Stevens, 4575 N. Silver Springs Drive, Park City, Utah 84060.
ARTICLE II
APPLICATION
All present or future owners, tenants, or any other persons who might use one or more lots or common areas of the Association in any manner are subject to the regulations set forth in these Bylaws. The mere acquisition or rental of any of the lots, condominium units, or part thereof, or use of the Common Recreational Areas as described on attached Exhibit “A”, will signify that these Bylaws are accepted, ratified, and will be complied with by said persons.
ARTICLE III
MEETING OF MEMBERS
Section 1. Place of Meetings. Meetings of the Members may be held at such place within the State of Utah as the Board of Trustees may specify in the notice thereof.
Section 2. Annual Meetings. The annual meeting of the Members shall be held on the second Wednesday in November, at the hour of 7:00 PM. If the day for the annual meeting of the Members falls on a legal holiday, the meeting will be held at the same hour on the first business day following which is not a legal holiday, provided that the Board of Trustees may by resolution fix the date of the annual meeting on such other date as it may deem appropriate.
Section 3. Special Meetings. Special meetings of the Members may be called at any time by the President or by the majority of the Board of Trustees, or upon written request of thirty percent (30%) of the total votes of the membership.
Section 4. Notice of Meetings. Written notice of each meeting of the Members shall be given by, or at, the direction of, the Secretary, by mailing a copy of such notice, postage prepaid, at least 30 days before such meeting to each Member entitled to vote, addressed to the Member’s lot address, unless a different address is supplied in writing by such Member to the Secretary at least 30 days before any meeting, or by delivering such notice to the Member at such Member’s lot, condominium, or home address. Such notice shall specify the place, day and hour of the meeting, and the purpose of such meeting.
Section 5A. Quorum. Fifty-percent (50%) or more of the Members, either present in person or by proxy, shall constitute a quorum for any and all purposes, except in special assessment circumstances, in which the express provisions require a sixty-six and two-thirds (66 2/3%) percent vote of the members present.
Section 5B. Absence of Quorum. In the absence of a quorum, the meeting shall be adjourned for twenty-four (24) hours, at which time it shall be reconvened and any number of Members present at such subsequent meeting, in person or by proxy, shall constitute a quorum. At any such adjourned meeting held as set forth above, any business may be transacted which might have been transacted at the meeting as originally noticed.
Section 6. Voting. When a quorum is present at any meeting, the vote of the Members representing more than fifty (50%) percent of those present at the meeting, either in person or by proxy, shall decide any question of business properly brought before such meeting. All votes may be cast either in person or by proxy, however, all proxies shall be in writing, and must be of record with the Secretary.
ARTICLE IV
TRUSTEES: SELECTION: TERM OF OFFICE
Section 1. Number. The affairs of this Association shall be managed by a Board of Trustees comprised only of the various Presidents, or the nominees thereof, of the member associations.
Section 2. Term of Office. The various associations under the Master Association shall be represented on the Board of Trustees in perpetuity. The various trustees shall change as the individual associations elect new officers. [Utah Code – Title 16 – Chapter 06a – Utah Nonprofit Corporation Act Section 16-6a-805. Terms of trustees. (b) In the absence of any term specified in the bylaws, the term of each trustee shall be one year.]
Section 3. Removal. Any trustee may be removed, with or without cause, by a majority vote of the trustees. The office of a Trustee may be declared vacant by the Board of Trustees in the event any Trustee shall be absent from three (3) consecutive regular meetings of the Board. In the event that a Trustee is removed by the Board of Trustees a written notice to the comprising association will be sent by the Secretary of the Association with such notification and request that another officer or nominee of that comprising association be named to the Board of Trustees of the Master Association. In the event of death, resignation, or removal of an officer of the comprising association who, because of said office was a member of the Board of Trustees of the Master Association, said comprising association will notify the Master Association of said occurrence and the replacement thereof.
Section 4. Compensation. No trustee shall receive compensation for any service rendered to the Association. However, any Trustee may be reimbursed for actual expenses incurred in the performance of his or her duties. In the event that an extraordinary expense is contemplated, such information is to be imparted to the Board of Trustees prior to said expense being incurred. A vote shall be taken regarding said expense.
Section 5. Action Taken Without a Meeting. The Board of Trustees shall have the right to take any action without a meeting which could be taken at a meeting, if a consent in writing, setting forth the action so taken shall be signed by a simple majority of the Trustees, except in special circumstances.
ARTICLE V
MEETINGS OF TRUSTEES
Section 1. Regular Meetings. Regular meetings of the Board of Trustees shall be held at such place and hour as may be fixed from time to time by the President or by the Board of Trustees.
Section 2. Special Meetings. Special meetings of the Board of Trustees shall be held when called by the President or by a simple majority of the Trustees, after not less than three (3) days notice to each Trustee.
Section 3. Quorum. A majority of the Board of Trustees shall constitute a quorum for the transaction of business. In the event a Trustee is not available for a Board Meeting, his written proxy sent to any trustee will establish his vote.
Section 4. Waiver of Notice. Before or at any meeting of the Board of Trustees any Trustee may, in writing, waive notice of such meeting and such waiver shall be deemed equivalent to the giving of such notice. Attendance by a Trustee at any meeting thereof shall be a waiver of notice of the time and place thereof.
Section 5. Adjournments. The Board of Trustees may adjourn any meeting from day to day or from such other time as may be prudent or necessary, provided that no meeting may be adjourned for longer than thirty (3) days.
ARTICLE VI
POWERS AND DUTIES OF THE BOARD OF TRUSTEES
The business, property, and affairs of the Association shall be managed and governed by the Board of Trustees which shall have the powers and duties as provided in the Articles of Incorporation, these Bylaws, and as provided under the laws of the State of Utah.
ARTICLE VII
OFFICERS AND THEIR DUTIES
Section 1. Enumeration of Offices. The officers of this Master Association shall be President, a Vice-President, a Secretary, and a Treasurer. The last enumerated office may be held by one person. These officers shall at all times be members of the Board of Trustees, and such other officers as the Board may from time to time create by resolution.
Section 2.. Election of Officers. The election of officers by the Board of Trustees shall take place at the first meeting of the Board following each annual meeting and each shall hold office for two (2) years unless he or she shall sooner resign, or shall be removed, or otherwise choose not to serve.
Section 3. Special Appointments. The Board of Trustees may elect such other officers as the affairs of the Association may require, each of whom shall hold office for such period, have such authority, and perform such duties as the Board may, from time to time, determine.
Section 4. Resignation and Removal. Any officer may be removed from office with or without cause by a majority vote of the Board of Trustees. Any officer may resign at any time by giving written notice to the Board of Trustees, the President or the Secretary. Such resignation shall take effect on the date of receipt of such notice or at any later time specified therein, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. Upon receipt of said resignation the secretary of the Master Association shall, in writing, notify the appropriate comprising association of receipt of said resignation.
Section 5. Vacancies. A vacancy in any office may be filled by appointment by the Board of Trustees. The officer appointed to such vacancy shall serve for the remainder of the term of the officer replaced.
Section 6. Multiple Offices. The offices of Secretary and Treasurer may be held by the same person. No person shall simultaneously hold more than one of any of the other offices, except in the case of special offices created pursuant to Section 3 of this Article.
Section 7. Compensation. No compensation shall be paid to the officers for their services as officers, unless a resolution authorizing such remuneration shall have been unanimously adopted by the Board of Trustees before such services are undertaken. However, an officer may be reimbursed for actual expenses incurred in the performance of his or her duties.
Section 8. President. The President shall be the chief executive of the Board of Trustees, and shall exercise general supervision over its property and affairs, shall sign on behalf of the Association all conveyances, mortgages, and contracts of material importance to its business subsequent to a vote of the Board of Trustees, and shall do and perform all acts and things which the Board of Trustees may require of him/her, and shall preside at all meetings of the Members and the Board. The President shall have all of the general powers and duties which are normally vested in the office of the President of a corporation including, but not limited to, the power to appoint committees from among the Members (or otherwise) from time to time as the President in his or her discretion decide is appropriate to assist in the conduct of the affairs of the Association.
Section 9. Vice President. The Vice President shall take the place of the President and perform those duties whenever the President shall be absent or unable to act. If neither the President nor the Vice President is able to act, the Board of Trustees shall appoint some other Member thereof to do so on an interim basis. The Vice President shall also perform such other duties as shall from time to time be prescribed by the Board of Trustees.
Section 10. Secretary. The Secretary shall record the votes and keep the minutes of the meetings and proceedings of the Board and of the Members; have charge of the corporate books and papers as the Board of Trustees may direct; keep the corporate seal and affix it on all papers requiring said seal; serve notice of meetings of the Board and of the Members; keep appropriate current records listing the names and addresses of the Members; and shall perform such other duties as required by the Board.
Section 11. Treasurer. The Treasurer shall receive and deposit in appropriate bank accounts all monies and other valuable effects of the Association and shall disburse such funds as directed by resolution of the Board of Trustees; shall sign all checks and promissory notes of the Association; keep proper books of account; and shall prepare an annual budget and a statement of income and expenditures to be presented to the membership at its regular annual meeting.
ARTICLE VIII
BOOKS AND RECORDS
Section 1. Books and Accounts. The books and accounts of the Association shall be kept under the direction of the Treasurer and in accordance with reasonable standards and accounting procedures. A certified public accountant approved by the Board of Trustees and twenty-five (25%) percent of the Members shall be chosen to do a certified audit if requested by the Board of Trustees and/or twenty-five (25%) of the Members.
Section 2. Inspection of Books. Financial reports, such as are required to be furnished and Articles of Incorporation and Bylaws of the Association shall be available at a place designated by the Secretary for inspection at reasonable times by an Member. Copies may be purchased at reasonable cost. [Or downloaded from the website.]
ARTICLE IX
CORPORATE SEAL
The Board of Trustees shall approve a corporate seal.
ARTICLE X
AMENDMENTS
These Bylaws may be amended, at a regular or special meeting of the Board of Trustees by majority vote.
ARTICLE XI
ASSOCIATION RULES
The Board of Trustees shall have the power to adopt and establish, by resolution, such common recreational area management and operational rules and regulations as it may deem necessary for the maintenance, operation management, and control of the Association, and the Board of Trustees may from time to time, by resolution, alter, amend, and repeal such rules and regulations. Member shall at all times obey such rules and regulations and do their best efforts to see that they are faithfully observed by their tenants and the persons over whom they have or may exercise control supervision. Copies of all rules and regulations adopted by the Board of Trustees shall be presented at the annual meeting or mailed or delivered to all Members at least ten (10) days prior to the effective date thereof. (See Attachment [No Attachment included in this copy] )
ARTICLE XII
INDEMNIFICATION
Every person who is or shall be or shall have been a Trustee or an officer of the Association, and his or her nominee, shall be indemnified by the Association against all costs and expenses reasonably incurred by or imposed upon him/her in connection with or resulting from any action, suit, or proceeding to which (s)he may be made a party by reason of his being or having been a Trustee or Officer of the Association or of any subsidiary or affiliate thereof, except in relation to such matters as to which he shall finally be adjudicated in such action, suit, or proceeding to have acted in bad faith and to have been liable by reason of willful misconduct in the performance of his duty as such Trustee or Officer. “Costs and expenses” shall include, but without limiting the generality thereof, attorney’s fees, damages, and reasonable amounts paid in settlement.
ARTICLE XIII
ADOPTION
On the ____day of January 1990, a meeting of the Board of Trustees of the Silver Springs Master Homeowners Association was held at __________, in Park City, Summit County, Utah. A quorum was present at this meeting, and after the giving of notice that such would be considered, adoption of the new Bylaws was considered and approved by a majority of the Board of Trustees.
(Unsigned)
In 1990, Lynn Stevens, who was then president of the Willowbend West HOA, as well as manager of the Silver Springs Water Co, acting in concert with the Developers, created a draft of the MA Bylaws as they were obligated to do in the October 1989 Developer-Homeowner Agreement:
“4. Master Homeowners Association. Developer will coordinate meeting(s) and notification to associations to initiate the organization of a master homeowners association. Developer, at its expense, shall provide documents suitable for establishing an organizational format for an association representing all Homeowners with respect to the maintenance, improvement and administration of the common areas within the Subdivision.. Developer’s obligation in this regard shall be limited, however, to providing organizational documents in general draft form only, with specific details as to the nature and extent of improvements; cost thereof, procedure for levying common expense assessments, and method for the enforcement of such assessment authority, among other things, being the obligation of the individual associations acting as a group to provide, and not that of the Developer.”
However, the constituent HOAs never provided input nor ultimately ratified the draft. This has been confirmed by the Developer, the assisting attorney Scott Welling, and Silver Springs Members involved at that time in the process. That explains why MA Bylaws Article XIII Adoption is incomplete. No meeting of the Board of Trustees was held and no vote of adoption was ever taken. [Again, confirmed by conversations with the Developer and the assisting attorney.] Aside from the difficulty of getting each HOA to provide specific language or organizational changes, the last step to adoption of a Master Association proves to be problematic due to there never occurring a vesting of the authority of each HOA trustee to bind its HOA to the MA.
The trustees never prepared the specific details required to complete final MA Bylaws. Therefore the trustees never voted to adopt, nor ever signed any MA Bylaws, therefore they never submitted themselves to the authority of the MA…under the governing charter and/or Bylaws of the Master Association. The Silver Springs Community individual subdivision presidents meet only as a group with the title “Master Association” without any of the legal documentation or authority for an actual Master HOA. The existing Minutes of these meetings substantiate that this group does not follow a set of rules or regulations by which they might administer the affairs of the Silver Springs Community nor do they have the power or vested authority to assess the property owners, etc. This, therefore, supports the resignation of individual subdivision HOAs from the group with merely a title of “Master Association.” (1989 Developer-Homeowner Agreement, Section 4, last paragraph.)
The Master Homeowners group, or Non-Profit Corporation, have never completed or formalized new Bylaws, neither have they amended the Draft Bylaws.