Our HOA is currently having trouble filling all Board vacancies. They recently voted to reduce the By-Law specified number of Directors from 7 to 5. It was suggested that it should be made a range of 5 to 7 Directors, but they responded that's it not legally permitted... that a specific number must be used. The NC Planned Community Act does not mention this and the NC non-Profit act is double talking on the subject. It states, "55A-8-03. Number of directors: (c) The articles of incorporation or bylaws may establish a variable range for the size of the board of directors by fixing a minimum and maximum number of directors. If a variable range is established, the number of directors may be fixed or changed from time to time, within the minimum and maximum, by the members entitled to vote for directors or the board of directors. If the corporation has members entitled to vote for directors, only such members may change the range for the size of the board or change from a fixed to a variable-range size board or vice versa." Does this mean it takes a member vote to change an existing By-Law?
The method of amending By-Laws will depend upon the terms established by the By-Laws. It is not unusual to provide that the number of Directors may be changed from time to time by the Directors, subject to certain conditions (such as not less than a certain number nor more than another number). If you have additional questions, consult with an experienced Business Attorney.
The foregoing discussion does not establish an attorney-client relationship, is qualified by the limited facts presented above, and should not be relied upon as legal advice. To obtain definitive legal advice upon which one can rely necessitates retaining an attorney who is qualified in this particular area of the law.
Attorney D'Esposito is correct. Have a corporate attorney look at the bylaws.
I would query the HOA's legal counsel on this question. More likely than not, you can amend the Bylaws as you have described, but counsel can issue you a legal opinion in writing as to how to perfect that process, consistent with both the Bylaws and Declaration. If for some reason the HOA board does not have counsel on retainer, you would want to engage one, at least for purposes of obtaining a written legal opinion, if not for the long term as well. Best wishes to you.
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