Mandatory vs discretionary provisions
Two words, "shall" and "may", decide whether a line in your documents is a rule you must follow or a choice you can make.
"Shall" is mandatory, imperative language: if your governing documents say the board "shall" do something, it must be done. "May" is permissive: it grants a choice. Treat every "shall" clause as a duty and every "may" clause as discretion, though courts sometimes read "shall" more loosely depending on context.
What "shall" and "may" actually mean
Every governing document, your declaration, your bylaws, your rules, uses these two words constantly to signal whether something is required or optional. Get the difference wrong and you can miss a duty your board actually has, or assume a duty that isn't really there.
"Shall is an imperative command, usually indicating that certain actions are mandatory, and not permissive."
Source: Wex Legal Dictionary: "shall", Cornell Law School, Legal Information Institute
The same source describes "may" as "generally used to indicate a permissive provision, ordinarily implying some degree of discretion." Where "shall" closes off options, "may" opens one up without requiring it.
Why the difference changes what your board must do
Read the word before you read the sentence. If your bylaws say the board "shall" hold an annual meeting, skipping it is not a scheduling call, it is a violation of your own bylaws. If a rule says owners "may" submit an architectural request by email, that is one allowed method, not the only one, and the board cannot treat it as mandatory or exclusive.
This matters most when you are deciding whether the board has to act. A "shall" leaves no room for board discretion about whether to do the thing, only about how. A "may" leaves the choice itself open.
The exception: courts don't always take "shall" literally
"The word 'shall' does not have a fixed or inflexible meaning and may be given a permissive or directory interpretation depending on the legislative intent."
Source: Wex Legal Dictionary: "shall", Cornell Law School, Legal Information Institute
Whether a specific "shall" in your own documents holds up as strictly mandatory can depend on your state's courts and the surrounding wording of the provision itself. Read the whole clause, not just the one word, and ask what your document says happens if the step is missed. If that is genuinely unclear, it is a question for your board's attorney, not a guess.
Check yourself
Answer before you read the explanation, recalling it is what makes it stick.
Your declaration reads: "The board shall approve or deny architectural requests within 30 days." What does this require?
A rule states owners "may" park a second vehicle in the guest lot. What does "may" signal here?
Your bylaws use "shall" for board elections, but a court once found a similar "shall" clause was not strictly mandatory. Why might that happen?
Sources
- Wex Legal Dictionary: "shall", Cornell Law School, Legal Information Institute
Governing Documents
Next, see how "shall" and "may" clauses rank against each other when your documents conflict: understanding the hierarchy of HOA documents.
Whether a specific "shall" clause is treated as strictly mandatory can vary by state and by the wording of the rest of your document.