Virginia Condominium & Homeowners Association Lawyer

IS BOARD MEMBER EMAILING A VIOLATION OF THE OPEN MEETING REQUIREMENTS?

        With more frequency I am being asked whether, and to what extent, Board Members are entitled to communicate with each other by email.  A typical questions that is asked is: "After a solicitation of bids, we received a couple of bids for a major project in the community and the board members have been given a copy of the proposals.  There then ensued an email exchange amongst the board members analyzing and discussing the bid packages.  In order to get the project going before the next board meeting which is three weeks away, the President wishes to poll the board members on which contract to accept in order to move forward with the project.  is this permissible?"    

        The answer is clearly no, but the subsidiary question is, if that is the case, how much discussion can be held by board members via email (or telephone conference call, for that matter) without violating the open meeting requirements?

Question:  My HOA is planning to have the annual meeting next month and vote for board of directors. The issue is, the last annual meeting was October, 2006 where officers and board members were voted on, for a one year period. Their terms expired in October, 2007. They are still acting as if they are a board. I have challenged them on this, yet they have ignored it. They are also including changes to the voting procedures in violation of the bylaws, and all board meetings have been "closed" although I have informed them of the VA requirement to have them open. Is there a legal way to stop them?

Response:  With regard to board members serving past the end of their terms, this is generally permitted by the bylaws if no election has been held to replace them. If no meeting of the members was called (annual meeting) in order to have an election, this is improper and written formal demand should be made for a meeting to be called. You should engage legal counsel familiar with the operation of associations to assist you in this matter. Closed meetings of the board are not permitted by the statutes of Virginia, except for the discussion on certain topics specified in the statutes. We would hope, and expect, they would respond favorably to a demand letter from your attorney which explains the legal requirements.

Michael A. Inman, Esquire

QUESTION:  I live in a condominium association which has a management company.  Every year they have an election of officersfor which the management company sends out proxies to owners.  Some owners on their own have taken the official proxy and made up one of their own and mailed them to the homeowners and they have marked who they want the homeowners to vote for.  Can they do this and is it legal?

RESPONSE: 

 Greg Montero

Q:  Elections are coming up in our self managed association. From some of our discussions it seems that everyone doesn’t agree on how to use proxies. What suggestions can you give us to have a smooth and successful election process?  Who can hold a proxy for a member?  Does it have to be a board member or an officer of the association? What can we do if we don't have a quorum of members?  Can you count the proxies toward a quorum?

A:  These are important and frequent questions and a good understanding of the process and proxies is important. 

First, to have an election you need candidates. Often that is a problem for associations and one reason that some are putting in limits on the number of units that can be rented.  Generally absentee owners are not particularly active in the association's affairs.  You should start "recruiting" candidates for board positions months in advance of elections. You need to let your members know that the board is looking for interested homeowners to serve on the Board or as committee members.  Ask members who may be interested to come to a board meeting and, after the meeting, familiarize them with board or committee participation requirements.

QUESTION:  I am on the Board of Directors for a condominium association.  We have our budget meeting for 2008 coming up.  This is my first year on the board and another board member stated that last year, they had a planning session at our managing agent’s office.  Do we have to advertise and have an open meeting every time the board meets?  Is this type of meeting/session legal?  We have already been accused of being secretive, however I feel the accusation is unfounded.  I just want to make sure we do everything legally.  Thank you.

RESPONSE:  The short answer to your question is yes, the upcoming budget meeting needs to be an "open" meeting for which all owners are given proper notice and the opportunity to attend.  You should review the provisions of Section 55-79.75(B) of the Code of Virginia (part of the Virginia Condominium Act), which requires that all Board meetings be "open," including meetings of committees or subcommittees.  This law was passed specifically for the purpose of preventing boards from acting in secret without giving the owners the chance to attend meetings or know what's going on, so your Board should be particularly diligent about complying with this law if owners have complained about secret board meetings in the past. 

The only exceptions to the requirement of having an "open" board meeting are listed in 55-79.75(C), which says that the Board can go into "executive session" (closed to non-board owners) to discuss legal matters, owner violations, contract negotiations, and other specific topics.  Even in those cases, however, be mindful of your obligation to still give notice of the meeting, properly convene the meeting, then make a motion to go into executive session, and reflect in the minutes why the meeting went into execution session.  

Q.        We have a resident who attends every board of directors meeting. While the Board welcomes all of the owners and encourages them to attend, this guy seems to think our meetings are his stage. He constantly interrupts speakers, attempts to make motions from his chair and generally is obnoxious to everyone. Is there anything we can do to get him to behave or exclude him from meetings – he is preventing us from making progress on several issues.

A.        If there ever was a situation that demands courtesy and respect it is the community association meeting. For many people, homes are emotional issues, and as a result, many owners do not always act rationally when dealing with issues that affect their homes. Also, many folks are not accustomed to dealing with issues affecting their homes in cooperation with a large group of other owners.

Q.        We are retiring to the Hampton Roads area and are thinking of buying a smaller home. Because we do not want to do a lot of exterior maintenance, one of our considerations is a condominium.   We are concerned it may not suit us because we would live so close to our neighbors, as well as under the community's rules. Do you think we should consider buying a condominium?

A.        The answer to your question is yes.

First, remember that a condominium is not a type of housing but simply a form of ownership. Your choices include condominium flats, townhouses, single-family detached homes and even trailer parks. Typically condominium ownership means you own your "home" or "living space" the same as you would a traditional single?family home and you own all the common elements 'together" with the other owners. The common elements differ from community to community and sometimes you do own some yard area as part of your “unit”. Generally common elements include the exterior walls, the roof, parking lot, grounds and any recreational facilities.

Q:       We will be having our annual elections in October. Last year we didn't know most of the candidates were who were on the ballot. It seems that there must be a preferred way to run these HOA elections. Can you give us some pointers on elections so that we can improve our process?

A:       Thanks for bringing up this important topic. Nothing is more important in community governance than having an active and effective board of directors. The board is the key governing body that is required to make decisions affecting the whole community from managing the funds to hiring vendors for the various tasks required to keep the community facilities in top condition. You certainly want the most qualified people who are willing to step forward and volunteer for the position. Here are a few tips for having a successful election.

Q:As a board member of a 180 unit condominium association, I am trying to figure out how we can have our upcoming annual meeting if we don't get a quorum of members present. Our bylaws say we have to have fifty percent of our owners present in person or by proxy to have a quorum for a meeting. That is 90 members. We did not achieve that number last year and could not have the meeting and elect new directors. What can we do to have a successful meeting?

A:There are a couple things we can suggest. First, check your documents to see if you have a provision whereby the quorum requirement is reduced for a subsequent meeting called within a short time for the same purpose when a quorum is not achieved. Some documents reduce the requirement by as much as one half.

IS BOARD MEMBER EMAILING A VIOLATION OF THE OPEN MEETING REQUIREMENTS
OF THE CONDOMINIUM ACT AND THE PROPERTY OWNERS ASSOCIATION ACT?

With more frequency I am being asked whether, and to what extent, Board Members are entitled to communicate with each other by email. A typical question that is asked is: "After a solicitation of bids, we received a couple of bids for a major project in the community and the board members have been given a copy of the proposals. There then ensued an email exchange amongst the board members analyzing and discussing the bid packages. In order to get the project going before the next board meeting which is three weeks away, the President wishes to poll the board members on which contract to accept in order to move forward with the project. Is this permissible?"

The answer is clearly no, but the subsidiary question is, if that is the case, how much discussion can be held by board members via email (or telephone conference call, for that matter) without violating the open meeting requirements?

Q.I have recently been elected Secretary of my association. I want to make sure I do a proper job of keeping the minutes and records of the association. Should I make an audio recording of the meetings? Can you provide a checklist for me to follow?

A.The primary function of the Secretary is to maintain the records of the association, with the exception of the financial accounts. This includes all of the minutes, any resolutions adopted by the Board of Directors, correspondence, contracts and notices. The best way to accomplish that is by having an organized filing system.

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.