Voting - Getting It Right
It hardly seems fair that once you have finally corralled the requisite number of people to a meeting, the job is not done. We all know how hard it is to manage an Association in the face of apathetic owners. Where we have seen more potential for problems is beyond the point of obtaining a quorum. This review focuses on voting, a who-what-how review of the current, and sometimes confusing, issues surrounding the process.
But first, a comment is needed about the quorum issue. In recognition of the difficult task of motivating owners, the requirements necessary to achieve a quorum have relaxed somewhat for condominiums. Association documents may now provide for as little as 10% of the eligible voting populous to constitute a quorum, but remember the documents are the final word - not the Code. This may mean having to change the governing documents to conform to what is now permissible, but you'll have to get those owners' signatures to amend your documents.
Frequently it is just not possible to get enough people physically present in one spot to achieve a quorum. For this reason, proxies are a valuable supplement to the live body count. But, beware, it is important to review your proxies at least annually to insure that they comply with the ever changing Code of Virginia. Managers must be alert to changes in the Condominium Act or POA Act and the Nonstock Corporation Act, if your association has been incorporated. Most recently the Code has been amended to permit electronic voting with consent of the unit owner and after the procedures are put in place by the Board. This is not a procedure that is likely to be practically available to most associations immediately.
Another way some associations have sought to simplify the voting process is the use of mail-in or "absentee" ballots. A problem arises, however, when the use of such ballots is not authorized by the association's governing documents. There have been several court cases decided where the board had attempted to use mail-in ballots and the courts have said their use was invalid. In a 2000 Utah case the court pointed out that the association's bylaws required "a vote of the majority of the membership present in person or by proxy" in order to decide any issue and that the Board could not resort to mail-in ballots, which were not authorized by the bylaws, in order to achieve the requirement that the specific proposal pass by "a vote of the owners of a majority of the lots in the subdivision". In another case involving the approval of the subdivision of a lot by an association, the Board reversed a vote in a meeting when they counted some mail-in ballots. The court concluded that "only those ballots that were properly cast in accordance with the association bylaws may be counted."
Another potential pitfall which is rarely considered is whether the party casting the vote is actually entitled to do so. Have you checked that the vote is from an owner and not a tenant? Are the co-owners of one unit both voting? Are you certain that the property has not changed hands or that a person's interest has remained the same? Have your Board Members been divested of their office by failure to pay assessments, transfer of their interest in the property or some other reason for automatic termination? These things can and do happen.
You must be aware of the supplemental requirements of the Non-stock Corporation Act. For instance, the Nonstock Corporation Act requires that a list of eligible members and their addresses be available for inspection at the commencement of a meeting (and for the ten days prior to the meeting) at which a vote will be held. No such requirement is present in the Condominium or Property Owners' Acts or most Declarations or Bylaws, but this may not excuse such failure if challenged by a subsequently disgruntled owner.