Cohousing-L Mailing List: Re: Bylaws Question

[Sharon Villines (sharon]

> On Jan 7, 2024, at 11:31 PM, Kenneth Schachter <mekerabe [at] gmail.com> 
> wrote:
> 
> Newer members in our community are concerned that our practices don’t match
> our bylaws and are not moved by the explanation that our bylaws need to
> conform to the expectations of regulatory agencies and lenders while our
> practices are modeled on Cohousing principles.  [snip] If your community's 
> bylaws do not conform,
> how do you explain that difference to new members?

We are in the process of bringing our bylaws into conformance with our 
practices. And updating them to reflect some of the new requirements in Condo 
Law in DC. It takes time but it has been important to the process of newer 
residents understanding the “why” of things and older residents understanding 
what the bylaws actually do say that could be enforced if we had a litigious 
resident. Your bylaws are given to new owners as soon as they are considering 
the purchase, and they accept the rules of the community and agree to abide by 
them at some point in the process of purchase.

If you read carefully, I don’t believe there are so many differences between 
what state laws require and what cohousing desires. In a housing development 
that will eventually be worth millions of dollars, you need to meet both levels 
of requirements. Here are some common misconceptions that resolve the 
distinctions.

1. CONSENSUS. The first is to realize that consensus is a form of 
super-majority vote of 100%. It is not unheard of for bylaws of organizations 
to require 100% approval of issues related to property and ownership. Usually, 
they require a 100% majority of Board members but requiring consensus does not 
mean you are refusing to follow the law. 

That said, I personally agree with having a fallback position of majority vote 
when all else fails. See #4.

2. COHOUSING ACTIVITIES. We have moved the more cohousing-like requirements to 
policies instead of putting them in the bylaws. The bylaws, for example, say 
that the membership can require labor contributions from residents as specified 
in the Community Rules. "Community Rules" is the generic term the DC Condo Law 
uses for whatever a community calls its internal Policies, Rules, Directives, 
Agreements, Instructions, etc.

"Community Rules” is a very useful term because we have Policies, Guidelines, 
Memos based on legal advice, decisions recorded in Minutes, etc. Understandings 
of how binding any of these documents are changes from time to time. Explaining 
all of them in the bylaws would take too long and require too many amendments, 
so they exist under our community documents on our website and we are freer to 
amend and interpret them as needed.

3. BOARD-CONTROL. Condo laws and bylaws are usually written as if all condos 
are governed by a Board that has absolute authority. One way cohousing groups 
have handled this is to put all owners on the Board. Another way is to include 
language that the "Board acts at the direction of the owners [or membership]" 
so all of its decisions are subject to membership approval. We specify an 
exception to this in Emergency Decisions, defined as “an immediate danger to 
lives or property,” that allows a subset of people to make a decision and 
announce it ASAP to the membership. No one wants to be in a situation where 
they are afraid to act because they don’t have the authority to spend money, 
call for help, stop a suspected burglary, etc. 

In fact, our DC condo law does say that the Board acts at the direction of the 
membership. That is in the first mention of the Board -- and not all condos are 
required to have a Board. A Board is optional. But then they go on to talk as 
if everything is a Board decision so it is easy to interpret this as only the 
Board can make this decision and everyone has to go along with it. This is not 
true in all cases. It depends on your bylaws.

4. POLLYANNA EXPECTATIONS. it is important to be realistic about the 
obligations of the community to all its members when it signs and files legal 
papers. A cohousing community in almost all instances is a real estate 
development and subject to the laws that govern all other real estate 
developments of the same legal form. 

An HOA is responsible for protecting millions of dollars worth of "real 
property.” A la-ti-da decision can wipe out the life savings of households. 
That’s why it is important to have a lawyer review all documents that have 
legal repercussions — then you have a seal of approval from an officer of the 
court. 

When you enter the legal arena, you are not alone and you can’t control who is 
in there with you. There are people even in cohousing who will do things you 
would never think of doing. They might be a relative of one of your residents, 
not a resident at all. Or a bank that someone owes money to. When push comes to 
shove, when other people are acting in ways that some people think are not 
cohousing-like, do you have a process for protecting yourself in 
non-cohousing-like ways?

Personally, I would say that protecting yourselves against legal jeopardy is 
also a cohousing value. It makes cohousing real. Or more real.

Sharon
----
Sharon Villines
Takoma Village Cohousing, Washington DC
http://www.takomavillage.org