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.
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.
QUESTION: I live in a condo association where the Board regularly has meetings, but does not regularly give notice of those meetings to any of the unit owners. On the occasions when they do give owners notice of the meetings, they do not always give the owners a copy of the agenda or subject matter of the meetings. What is the Board required to do with regard to giving prior notice and circulating copies of the agenda to unit owners?
RESPONSE: This issue is covered by Section 55-79.75 of the Virginia Condo Act. First, it is important to distinguish between unit owner meetings (which generally occur only once per year), and board/director meetings (which may occur regularly throughout the year).
Subsection (A) of the aforementioned Code section states that all owners must receive prior written notice (via regular mail or hand delivery) of all unit owner meetings. That notice must state the date, time, and place of the meeting, and must also state the "purposes of such meeting," which essentially means that the unit owners must either receive a formal agenda, or at least be given some indication of what will be discussed, decided, or voted upon at the unit owner meeting.
Subsection (B) of the aforementioned Code section applies to meetings of the executive organ (Board of Directors). These requirements are slightly different than the requirements for owner meetings. For Board meetings, the Board must publish notice of the time, date and place of the upcoming meeting in a place "where it is reasonably calculated to be available to a majority of the unit owners." This does not specifically require that written notice be mailed to the owners, nor does it require that owners be provided with an advanced copy of the meeting agenda.
Subsection (B), in its discussion of Board meetings, later states that an owner can make a written request to the Association that he/she be provided written notice of all upcoming Board meetings, and the Board must honor that request. The unit owner making that request must submit it in writing at least once per year to the Association.
Further, the information that is being provided to the Board members in preparation of their Board meeting (commonly referred to as a "Board packet") must be "made available for inspection" to the unit owners "at the same time such documents are furnished to the members of the executive organ." This does not mean that each unit owner is entitled to have an agenda or board packet mailed to him prior to each board meeting, but instead only requires that the Association manager (or whoever handles these affairs) make the board packet available for inspection at the same time the Directors receive this information prior to the meeting. Please note, however, that any documents in the Board packet relating to matters that the Board can discuss confidentially in ‘executive session’ may be lawfully excluded from the packet available for inspection by all unit owners.
Thus, in summary, the Board is obligated to send prior written notice and agendas to all owners in advance of any unit owner meeting. For Board meetings, the Board is only obligated to make a reasonable good-faith effort to publish notice of the meeting to all unit owners (which may be mailing out notice to everyone, putting notices on a bulletin board or in the elevators, posting on the Association website, etc.), unless a unit owner sends the Board a written request, at least once per year, asking for written notice of all upcoming meetings. The Board is not, however, obligated to mail out copies of an agenda prior to its Board meetings, but must honor the request of any unit owner wanting to inspect the board packet prior to the upcoming board meeting.
If each unit in the community is assigned a percentage vote because of the size of the unit, and a 51% “yes” vote is called for to proceed with something on the ballot, but not 100% of the units are voted, then is a “yes” decision determined by the number 51, or is it determined by 51% of the units that were voted? We recently had a 45% “yes” vote to a 42% “no” vote, and it was determined that the item needed 51% instead of 45% to make it a “yes” vote.
Generally speaking, some votes require a percentage of a quorum, and other votes require a percentage of the entire membership/ownership of the Association. Thus, the answer to your specific question is to see what your documents require.
Please note that the required consent for some votes is dictated by the provisions of the Virginia Code. A vote to amend the Declaration or Bylaws of a condominium, for example, requires a 2/3 vote of the entire Association, regardless of what the governing documents say, because this 2/3 vote is required by the Virginia Condominium Act.
Aside from the votes for which the Code dictates the required threshold, all other votes and consent procedures would be dictated by your particular governing documents. An Association’s Bylaws might state that certain matters get put to an owner vote requiring ___% of all owners, or might state that a passing vote must have ___% of a quorum of owners.
A quorum represents some number of owners which is less than the entire membership, and therefore a vote requiring 25% of a quorum takes less votes than one requiring 25% of the entire membership.