We are often asked if an owner can be prevented from voting when the association declaration or bylaws state that an owner who is not in good standing may not vote or that their vote will not be counted. Most board members and managers think this means that an owner who is delinquent in his payment of assessments cannot vote. Without further definition in the documents this is a correct interpretation. Some people think that it also means that if an owner has been found in violation of the covenants or rules and has not cured the violation or paid a charge made after a due process hearing that the owner cannot vote. Unless the documents specifically provide for such we believe that “not in good standing” is limited to delinquency in the payment of assessments.
We have found that there is frequently confusion about how to go into and come out of an executive session (aka closed session) of the board of directors. The governing statutes are Section 55-79.75 (C) of the Virginia Condominium Act and Section 55-510.1 (C) of the Virginia Property Owners Association Act. A motion must be made, seconded, voted on and passed proposing to go into executive session for one of the purposes set forth in the statute which are as follows:
In the course of dealing with a myriad of issues that arise in association governance one of the most misunderstood and misapplied statutes is the one that provides for executive sessions which are sessions of the board of directors closed to other members. The rules of the road for executive session are spelled out in the statutes in both the Condominium Act and the Property Owner’s Association Act. We believe that a couple of reasons the procedure is not utilized correctly is that it is technical, not easily located and adherence to the requirements is sometimes inconvenient. So at the outset of this article we want to quote the statutory provision that applies. It is as follows:
Recently we received the following question the answer to which could be helpful to many of you.
Q. Our condominium has a serious need for some renovation work on windows, doors and some balconies. It is going to cost around $3,000 a unit as best we can tell right now. One contractor we consulted said it was not urgent and that we could do it over a period of time. Another contractor indicated that he thought the deterioration would accelerate and we needed to do all the work right away. The Board is divided on which way to go, and right now we only have four Board members, and it is a 50/50 split. Our next election is September and we cannot agree on a new Board member either. We have been at this standoff for four months now, and we need to move ahead with some plans, but we do not seem to be able to do so. Do you have any suggestions?
For years we have encouraged associations to consider colored paper for voting forms. It makes them easy to spot and provides additional security against claims of stuffing the ballot box. Having survived more than a few challenges, in and out of Court, to claims of invalid Amendments, the single most effective way to defend these cases is to be able to establish how the votes were cast.
Q: As a board member of a large 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?
Our association just got started and has read through the VA HOA blog a lot! It has been a big help to us!
I had a question about the legal responsibility of a HOA board to respond to its members. We are a volunteer board, and there is one member of our community that is constantly sending emails (averaging 6 a day), certified letters, and posting inflammatory comments on Facebook and on our association home page. He recently sent one email documenting the number of emails he had sent us that had gone unanswered. He also attends board meetings and attempts to control the agenda and speak over the board, out of turn, and spending more than the allotted time on issues. We are a board of 8 neighborhood volunteers. With jobs, kids, and lives outside of the realm of the HOA, I just don’t understand how we possibly could respond to all of his emails. Is there a legal requirement that we respond to every email he sends? Or is there a legal guideline for determining which correspondence requires a response? Also, how can a board effectively manage people who are disruptive at a meeting? What advice would you offer to an association that deals with one particularly time-consuming member?
AN UNPAID VOLUNTEER TRYING TO DO THE RIGHT THING
Acts of Malice
Q: My homeowners association passed a resolution that allows the board to suspend a member’s voting rights and attendance at board meetings indefinitely due to acts of malice, such as verbal assault or menacing gestures, toward board members. Whether something is an act of malice is determined by the board members themselves. Can a homeowners association take away a member’s voting rights indefinitely and restrict attendance at the meetings?—Alexandria, Va.
A: The first issue is the suspension of voting rights and the second is the prohibition from attending board meetings. I question the legal propriety of a board resolution that suspends a member’s voting rights. What do the governing documents say about the suspension of voting rights? Who has the power to suspend voting rights?
PREPARING PROXIES FOR A MEMBERSHIP MEETING – A TRAP FOR THE UNWARY
Sometimes we have the unhappy duty of telling a client that the proxy they have sent out (or, worse, used) for a member meeting was invalid due to lack of compliance with the Virginia Condominium Act, or simply doesn’t constitute a proxy. It seems that many folks think that a proxy is something that is simple to do and should not require professional assistance. Unfortunately that is not the case. There are also a couple myths about proxies that we need to dispel.
I understand that the elected Board members are the only persons able to make motions and vote on them at a "Board Meeting." Is it true that at a "Membership Meeting”, either Annual or Special, that the members have the right to vote on issues affecting them, such as election results, budget proposals or even reversing or rescinding actions the Board may have taken?
In short, the association members are not just an audience to the Board at such "membership" meetings, it is actually their meeting, which is usually Chaired by the President of the Board, with all the rights to vote and make and second motions. Am I correct in this assumption?
You are correct that the issues which are discussed and voted on at meetings of the board of directors are subject to discussion only by board members. However, the Virginia Code does allow homeowners to be present and there must be some time allotted at each such meeting for owners to address the board about any issue pertaining to the association. This is generally referred to as the “owners forum.” Time limits may be imposed.
The manner of conducting annual and any special meeting of members/owners are largely dependent on the provisions of the Bylaws for your particular Association. For example, in almost all cases the Bylaws will provide that the members have the right at the annual membership meeting to vote for election of the Board Members whose terms are expiring. Also, together the Declaration and Bylaws likely will set out what powers the Association has as a whole, and which, if any, of those powers can be exercised by the members exclusively, rather than the Board.
Unlike Board meetings, there are no hard and fast rules about how the agenda is developed, what the level of comment and discussion is to be allowed from the individual members and whether there are votes taken on those items. You are most likely to find information related to Board and Member meetings in your Bylaws and suggest you start by carefully reviewing those provisions. Also you may find that your Bylaws provide that your meetings are governed by Roberts Rules of Order which is the internationally recognized authority on the conduct of meetings of all types of organizations. The Virginia Code does limit comments by members at these meetings during the owners’ forum to items appearing on the agenda, and, again, members may be given a time limit.