Category Archives: Voting

Validity of Condo Proxy Vote Process Questioned

J.B. from outside of Connecticut writes:

Dear Mister Condo,

I received a proxy for election of the condo board. Seven positions. Eight names with no blank spaces. Seven for re-election. One new. In a conversation with a current board member she told me that the eighth name did not want to be on the board, but a different person did. Asked the management company, without success, how members are elected? Simple majority? A percentage needed? Quorum needed? What happens to the votes cast by proxy of the owner not wishing to be on the board? Does this not disenfranchise the owner wishing to run? Answer I received “You can cast your vote anyway you wish”. Is this proxy election valid?

Mister Condo replies:

J.B., without knowing the rules for proxy voting for your state and how your declaration, covenant, rules and regulations read, I can’t give you a definitive answer. Proxies are handled differently and can vary from association to association. I will say that the spirit of the proxy looks to be intact. It is up to you to look up your association’s rules on proxy voting to see if the rules were followed. Typically, candidates are either nominated or self-nominated in advance of the Annual Meeting where the election vote is held. A nominated candidate who wishes not to server can most certainly remove themselves from the ballot. If there were no other properly nominated candidates, it would follow that there would be a vacant slot for the seat running without a nominated candidate. It would also follow that you could write in whoever you would like although there is no guarantee that your write-in candidate would win or even choose to serve if elected. Typically, the elected Board members have the right to appoint a director to fill a vacancy until the next election. Whether or not the proxy is valid may be moot if there were only seven candidates for eight offices. I would encourage any interested candidates to let their intention be known to the Board and that they run for office during the next election cycle. All the best!

Condo Unit Owners Sluggish to Return New CC&R Ballots

J.G. from outside of Connecticut writes:

Dear Mister Condo,

We drafted new CC&Rs and mailed ballots to owners late last year, but we’ve only received 51% of the ballots, which the management company can’t even open until we reach 67%, and even then, we don’t want to open them because once we do, we can’t count ballots that continue to arrive, plus because we need 67% in favor to pass, it’d have to be unanimous if we started counting. So, we really need more like 85% or greater ballots. We’ve sent out additional letters and ballots using different wording, short and long, but only coaxed one more ballot back. Our management company said some other HOAs try enticements to vote, like a free $15 certificate at a store or ice cream, etc.  What enticements or wording have you seen work to get reluctant owners to vote?

Mister Condo replies:

J.G., how sad is it that we have to entice unit owners to avail themselves of their right to vote on something as important as an amendment to their CC&Rs? I am not familiar with your provision that once you start opening any ballots that you cannot continue to collect and open more. I have never heard of that before. Kindly check with your association attorney to make sure you fully understand the ballot process. Typically, you can review and keep track of where you are as you go along. That should help speed up the process significantly and let the Board know exactly how many more ballots they need to achieve the acceptable 67% quorum needed to ratify the CC&R change. That being said, there really aren’t any reasons you couldn’t encourage unit owners to submit their ballots. I am not a fan of gift cards but community get-togethers can be quite effective and offer all community members a chance to socialize. You could bring in a local politician or celebrity to encourage attendance. You could certainly offer food or entertainment at the event. As long as you aren’t in violation of your governance documents, the sky is the limit. The good news is that you shouldn’t have to do this again any time soon. CC&Rs aren’t rewritten very often. Hopefully, this is a “one and done” event for the Board. All the best!

Must Board Members Attend Condo Special Meeting Called by Unit Owners?

F.C. from New Haven, County writes:

Dear Mister Condo,

When members hold a special meeting, can they make decisions that override Board, cause Board to do things they do not believe are in best interests of association? What happens if a special meeting is called and no Board members attend?

Mister Condo replies:

F.C., without seeing your community association governance documents first-hand, I can only offer you an overview of what could be going on here. The situation you describe is uncommon. Most associations are governed by their elected Board of Directors. If the Board isn’t doing their job to the satisfaction of unit owners, they are typically voted out of office and replaced with more popular candidates. It sounds to me like you have a group of unit owners who are trying to completely circumvent the Board by holding their own meetings. While there are protocols that allow them to do so, they need to follow the rules for calling a special meeting of unit owners. Typically, those meetings are for very specific purposes, including recalling Board members and electing new Board members to serve in their place. There is no requirement for sitting Board members to attend a special meeting called by unit owners but there may be no grounds for a group of unit owners to call a special meeting and take actions that are beyond the scope of the special meeting. My advice is to remove and replace the seated Board members, either by special meeting as outlined in the association’s governance documents or at the next election. You might also want to consult with an attorney who specializes in community association law to make sure the incoming Board does not make any legal blunders that could lead to lawsuits. Unit owners may want new leadership but there are rules they need to follow. The condo’s governance documents and your local state law will instruct the right way to do so. Good luck!

Former Condo Board President Feeling Threatened by New President

W.R. from New Haven County writes:

Dear Mister Condo,

I been having serious issues with the new president and other board members since I stepped down a year ago. This position went to the new president’s head to the point where she put all my neighbor’s business out in the community and when my neighbor addressed her via email she then called the management company to tell them she felt threatened by her. Then we were going back and forth via email about some of the bylaws & rules and as well as rumors that she was talking trash about me, she turned around and falsely accused me of threatening her and called the cops. The officers could not find any evidence of me doing that. Life for me has never been the same since. She doesn’t like to be told what to do and put my personal business concerning my email address in an email that went out to the entire community instead of addressing me only. How do I have her removed or handle this? Can I file a harassment charge against her and the board?

Mister Condo replies:

W.R., I am sorry for your troubles. As you know, I am not an attorney nor do I offer any legal advice in this column. If you are serious about filing charges against the President or the association, I think you should speak with an attorney to see if you have a case. As far as having her or any other Board member removed from office, you need only to vote them out at the next opportunity. Board members are democratically elected by all unit owners. If they aren’t serving the needs of the community, there is no need to return them to office. Of course, that means you will need to have other candidates willing and able to serve. You say that you just stepped down. You know what the commitment to serve is like. Perhaps you should run again or encourage a fellow unit owner to run. If you don’t replace these folks, you will very likely get more of the same. If they violate the rules of governance for your association, you can take action. Again, this may require the services of an attorney. I hope it doesn’t come to that. All the best!

Board Cites “Attorney/Client” Privilege in Questionable Condo Document Amendments

E.C. from outside of Connecticut writes:

Dear Mister Condo,

Our Board of Directors are amending our documents without the required 75% of the membership. I was told that two legal opinions were obtained by the BOD stating they have the right to do so. When I requested a copy of the legal opinions, the Management Company said they were invoking Attorney/Client privilege and I was refused. I am an owner of this Corporation and believe these opinions were obtained and probably paid for with my money. Should I be entitled to see these documents?

Mister Condo replies:

E.C., the short answer is “yes” but there are certain caveats in place to protect the Board. In other words, they have the right to withhold the documents during the period in question. I doubt it has anything to do with “attorney/client” privilege as much as it is an action they are taking as an Executive Board, which your governance documents likely give them the ability to do. Either way, if your documents or state law don’t allow them to amend your documents without a 75% vote, these amendments can and should be challenged by you or any other member of the association. You will want your own legal opinion, if necessary. Also, and more importantly, feel free to vote these folks out of office at your earliest convenience. Amending documents should not be done secretly, covertly, or improperly. Regardless of “legal opinion”, the will of the unit owners needs to be respected. These folks were elected to serve, not clandestinely revise the amendments to the association. I would interfere loudly with their plans and then prepare to vote new Board members in to office who will do a better job serving the will of the people. It may very well be that your association needs to revise its bylaws. Holding a meeting and involving the majority of unit owners as outlined in your governing documents is the way to do so. Good luck!

Who Wins Tied Election Between a Condo Owner and a Board Member?

S.F. from New Jersey writes:

Dear Mister Condo,

According to the NJ Condo act, who wins an election between a condo owner and a Board member if there is a tie?

Mister Condo replies:

S.F., I am not sure that the New Jersey Condo Act addresses such an issue. Typically, the association’s governance documents spell out how elections are handled. They may or may not address what happens when there is a tie between eligible candidates. Absent that, it is likely a matter to be decided by the association or its Board as the elected representatives of the association. I am curious as to the distinction you are trying to make between “a condo owner and a Board member”. If the association allows for Board members that are not condo owners to serve on the Board, there may be no distinction. Typically, associations are governed by their own unit owners as they have a vested interest in the success of the property. Again, look to your governing documents to see what they say. If they are silent, as I suspect they are, it may be time to amend them to address this unusual situation. Good luck!

Condo Board Keeping Election Results Private

V.M. from outside of Connecticut writes:

Dear Mister Condo,

Voting for three trustee positions with four individuals seeking a position was done primarily via proxy ballot. At the annual meeting, a quorum was not achieved. Some unit owners believe we have an obligation to post the results of the ballot count even though there was no quorum. What is your opinion?

Mister Condo replies:

V.M., results of any vote, proxy or other, are association records. As such, all unit owners have a right to see the results. However, allowing access to records and posting the results are two different things. I would say that any unit owner who wishes to see the results should request the record inspection. The association may or may not charge a small fee for the record inspection as detailed on your state law. My advice would be to always keep communication channels open between unit owners and the Board so as not to give the appearance of impropriety. An informed constituency is generally happier than one that is kept in the dark.

The lack of quorum at your Annual Meeting has no effect on this but it does bear the question of why proxy voting is required and why unit owners are not attending the Annual Meeting. This is common in seasonal properties (i.e. beach communities where owners may not be present year-round) but uncommon in associations where unit owners are typically at home. If the reason for no quorum is unit owner apathy, the unit owners have no one to blame but themselves. As long as the Board has nothing to hide, I would publish the results of the vote just to keep everyone happy and informed. All the best!

How Many Condo Proxy Votes Can One Person Make?

J.R. from outside of Connecticut writes:

Dear Mister Condo,

How many proxy votes can one person control and place?

Mister Condo replies:

J.R., voting by proxy is a common practice. The rules that govern how many proxy votes that a single person can control vary by governing documents (many are silent on the subject) and state laws. In my state of Connecticut, proxy votes are generally limited to not more than 15% of the total eligible votes for most matters. That means that if an association has 100 units, the proxy voter could cast votes for their own unit plus 14 others. Any additional proxy votes they held would not be counted. There is also the concept of limited proxy voting, meaning a unit owner has given another unit owner a proxy for a particular item. This is most common for things like voting in favor or against an Annual Budget or a Special Assessment. The single most important item to consider when proxy votes are used is that the person or persons counting the proxy votes understands both the association’s rules on proxy voting as well as the state laws on proxy voting. I have seen and heard first-hand accounts of associations that get this wrong and later have a unit owner contest the results of a vote. Depending on what is being voted on, this could be quite costly to the association. Imagine passing a Special Assessment and the proxy votes were tabulated incorrectly. The association hires a contractor only to have the vote challenged and thrown away. Now the association is on the hook to the contactor and won’t have the money to pay. Yikes! If you or your association is unsure about the exact process for how proxy votes should be used at your association, I recommend you speak with a locally qualified community association attorney who can give you an opinion on what your governance documents and state law say about the matter. That way, you will be in full compliance with both. Good luck!

Condo President Refuses to Relinquish Association Checkbook

T.C. from New Haven County writes:

Dear Mister Condo,

We recently changed management companies because they violated CT laws. Our President dragged his foot for 4 months before receiving a letter from the state ordering us to change companies. He was given the check book until we found a company. We found a company and he refuses to turn over the check book. Is this legal?

Mister Condo replies:

T.C., I am not an attorney and offer no legal opinions here. If you are asking me what I think of the President holding on to the checkbook and refusing to turn it over to the management company, I would say that is not a very friendly gesture and not stepping off on the right foot with the new management company. Is it criminal? Not in my book but it isn’t very sportsmanlike either. The great news is that your Board President can be voted out of office at the next Annual Meeting. Why don’t you and a group of like-minded unit owners volunteer to serve on the Board? That way, after you are elected, you can determine who will hold the various offices of the Board. If, on the other hand, the Board President has held the checkbook because there is evidence of missing money or such in there, and he has done something criminal, it is time to call the police. Stealing from the association is a crime. Work with your new management company to see what, if any, wrongdoing has occurred. If there is no harm, there is no foul. Either way, it sounds like it is time for a Board President who will act in the best interest of the association. Good luck!

Condo Board Dictates Condo Parking Lot Rules

T.P. from outside of Connecticut writes:

Dear Mister Condo,

Our condo bylaws include parameters for parking clearly aimed at owners. The HOA passed a rule stating that owners cannot use the parking spaces (the units have garages). Can HOA rules override bylaws? If so, what is legally required for them to do so?

Mister Condo replies:

T.P., the Board controls the common elements. Parking lots are common elements so the Board controls their use and can place whatever restrictions upon them that they see fit. The good news is that you control who gets to serve on the Board through democratic vote. If you and your fellow unit owners don’t like the parking lot rules, vote out the rule-makers and replace them with Board members who see it your way. That is the beautiful part of having democratically elected members of your Board. All the best!