Category Archives: Voting

New Jersey Condo Board Not Holding Elections

J.B. from New Jersey writes:

Dear Mister Condo,

  1. Our Condo Board meets in a conference room in local town hall. The meeting is open to all condo owners. Is it possible to have the Board Meeting in Skype or conference call instead of meeting in person? Will it meet the NJ Condominium Act requirement of “All meetings at which a board takes a binding vote are required by law to be open to all owners and advance written notice of such meetings must be given as provided by law.”
  2. Some of our Condo Association Board Members have continued without any election for years. Is that legally allowed? No election notices were sent out, they just continued on for years. Can other members who got elected request for an election? If yes, how do we do it?

Mister Condo replies:

J.B., “without any election for years”!!! I have never heard of that in a functioning condominium. Surely, your governance documents call for an Annual Meeting and a proper election process for Board members. Adding Skype to your Board meetings is the least of your worries right now!

I am not an attorney nor am I an expert in New Jersey Community Association Law, J.B., so please accept my advice as friendly. If you require a legal opinion, you will need to seek out a local attorney. That being said, let’s start with your governance documents with regards to election of officers. Typically, the condo docs require a minimum of one Annual Meeting per year. This is also done to satisfy most states’ Corporation laws that require an Annual Meeting of Shareholders be held to conduct corporation business. Your condo is a corporation, albeit a non-profit one, but a corporation nonetheless. At the Annual Meeting, a few pieces of business must happen. Perhaps the single most important is the adoption of the Annual Budget for the upcoming year. The second is to hold the election for officers. Now if there are no new candidates to select from, it is quite possible that a single vote is cast returning the Board members up for reelection to another term. Terms can vary but are typically one, two, or three years. The Board also has the ability to appoint Board members in the case of vacancy. However, it is done, there needs to be Minutes of the meeting to reflect the action. As a unit owner, you have the right to inspect Minutes once they are approved by the Board. In other words, you can go back and look at the election records for your association. If you can’t find any, you have a problem. My guess is that these folks have run unopposed for many election cycles and have simply continued to serve. If that is not the case, you would be wise to insist that elections are held at the next Annual Meeting or sooner if the situation merits it.

Whether a meeting is held in person or via conference call or Skype, the same rules apply as if the meeting were held in the real world. I know of many associations that have adopted technology advances like Skype to their meetings. However, just like any meeting of the Board, there must be minutes and the meeting must be made available to all unit owners, even if they are required to be muted during the meeting, they have the right to observe. The use of technology does not dissolve the burden of advance notice and all unit owners should be given notice of upcoming meetings in accordance with law.

Hope that helps. All the best!

Condo Bullying and Harassment

R.C. from Florida writes:

Dear Mister Condo,

What can unit owners in Florida do when bullied, followed, harassed, watched, threatened, etc. by condo association members and property manager? Especially when a lot of us are elderly and/or disabled physically in some way? Can you at least point me in the right direction?

Mister Condo replies:

R.C., I am sorry you and your neighbors find yourselves bullied, harassed, threatened or otherwise bothered by anyone, let alone the folks who govern and manage your association. True bullying, harassment, and threats are criminal offenses which should be reported to the proper authorities, including your local police department. Short of that, you might want to speak to an attorney who specializes in elder law to see what types of protections you are offered. The Property Manager works for and reports to the Board of the condo. You and your fellow unit owners have elected the Board to serve. If they aren’t doing the job properly, it’s time for a new Board. The condominium’s governance documents spell out the rules, regulations, and enforcement procedures for the condo. I guarantee you that bullying and harassment are not a part of those documents. In my experience, the best remedy for a condo bully is to stand up to him. That may mean removing him or her from his position of authority. It may even mean calling the police or bringing suit against him or her in a court of law. Bullies like victims, not folks who fight back. In Florida, you might want to check out the Department of Elder Affairs website to see if there are local resources to help you as well. You can find the information online at http://elderaffairs.state.fl.us/doea/report_abuse.php. Good luck!

Condo Board Member Regularly Abstains from Voting!

T.H. from North Carolina writes:

Dear Mister Condo,

We have a board of five and it seems that when they vote on any proposals one board member always abstains and nothing get done. Is this legal? Thank you.

Mister Condo replies:

T.H., thanks for writing. The legality of the vote is defined by two things. What do the governing documents say and what do any local, state, or federal laws say. As you know I am not an attorney and I offer no legal advice here. If you require a true legal opinion, I suggest you contact a local attorney who specializes in community association governance.

From a friendly perspective, I will offer that unless the Board Member who is abstaining from voting has a legitimate reason for doing so (a conflict of interest, for instance), this Board Member’s service to the Board and to the association is dubious at best. I do not believe there is anything illegal about abstaining from a vote. In fact, I believe it is a right and there are certainly times when abstaining makes perfect sense. However, to patently abstain each and every time a vote comes around is simply not a practice that the community needs to support. Since votes of the Board are association records, it would be fair to point this out at the next election cycle and suggest a better candidate for the position. If no one runs against this Board member and he or she is reelected, this abstinence of voting will likely continue and the community will continue to face the challenge of not getting anything done. All the best!

Condo Board Resign Looking to Help Fill Vacated Seat

T.S. from Illinois writes:

Dear Mister Condo,

I resigned from our Board in August and the present board have not filled the empty seat. Our by-laws require us to have 5 members. I was told I can request a “special meeting” to have that seat filled. How do I go about doing this? And am I required to get someone to fill this seat? Or can the present board put one of themselves in that spot which 2 are up for re-election in March or do they need to get someone? Thank you!

Mister Condo replies:

T.S., I am sorry you needed to resign from your Board. Quite frankly, once you resigned from the Board, none of this is your problem anymore. For the remaining Board members, they simply need to review the governance documents and follow the procedure for filling your vacated seat. Typically, the seated Board has the power to appoint a qualified candidate to fill the vacancy. Some condo documents do call for a special election or call for the vacancy to be filled at the next regularly scheduled election. Either way, it is a fairly straightforward process. It would be unlikely that you would be required to get someone to fill your seat but I am sure the remaining Board members would be open to any suggestions you may have to help them find an interested candidate. Good luck to you and your Board!

Condo Board Candidate Withdraws from Race and Assigns Votes to Another Candidate

D.C. from outside of Connecticut writes:

Dear Mister Condo,

My condo is in the process of elections. Ballots are out and are due in 11 days. One of the candidates decided she does not want to be on the board. So, she sent out an email informing the association and says she is putting another homeowner in her place. And noted that all her votes will go towards the new person. Is she allowed to do this? Or does she resign if she is elected and then the board decides on a new person? Or do the other 5 candidates automatically get on?

Mister Condo replies:

D.C., I am sorry that I cannot answer these questions immediately as I handle them on a first come, first served basis. Your elections are already over but here’s my advice in case this comes up again. Refer to your specific governing documents to see what it says about elections. Most are quite explicit in the methodology and include the requirements for becoming a candidate and the election process. My guess is that what this nominated candidate has done is not allowed or even addressed in the documents. She is attempting to provide and undue influence on the outcome of the election and while it may not make any difference to the outcome of the election, it is an unfair practice. As a candidate, you have two choices – run or don’t run. You don’t get to tell the electorate where your votes are going. They go to you or they go to an opponent. They are not “yours” to delegate to another candidate as if a vote for you is a proxy for you to do with as you see fit. Depending on how this election went and how satisfied or dissatisfied the association members are, they could either accept the results or challenge them (which could involve a lawsuit and/or another election). If everyone seems happy, my advice is to let things lie and don’t ever allow this person a chance to interfere in the democratic election process again. It is unfair and puts the association in a precarious legal position at the least, and at a possible lawsuit position at the worst. Instead of a win/win, it is a lose/lose proposition. Good luck!

Condo Board Voting Rights During Declarant Control Period

L.H. from outside of Connecticut writes:

Dear Mister Condo,

We have a new developer and my question is in regard to association voting rights. There are more undeveloped lots than what has been constructed. Does the new developer have a vote in the association for each undeveloped unit? This would give them the majority of the votes and complete control over any changes or issues including any changes to the master deed. Thank you for any information you can provide us.

Mister Condo replies:

L.H., during the developer or declarant control period, the Board is largely a Board in name only. If your association is rolled out in phases and each phase has its own Board, it is possible that the Board for your association may have already been given control to vote and help shape its own destiny. Other than that, the declarant has control over the association and will continue to develop and sell units (the developers primary interest) and likely keep common fees reasonable so as to cover common expenses and attract new buyers. The best advice I can offer any new association is to realize that the “association attorney” should not be the developer’s attorney, which I see far too often. The assumption of the new Board is that the attorney is looking out for their best interests, which simply isn’t true. The developer hired the attorney and that is who the attorney is working for. While mutual interests often align, there are times when an attorney representing solely the new association will take issue against the developer. Modifying the Master Deed is one of those instances where spending the extra money on an attorney now can have a huge impact on all unit owners, current and future. It means spending money now on the attorney but it could prevent lots of future expense. It does mean that the association also has a true fiduciary looking out only for their best interest. I hope your new condo development is turning out nicely (most do) and bring you and your fellow unit owners years of happy condo living. All the best!

Condo Board’s Ability to Make Capital Improvements Without Unit Owner Vote

R.J. from outside of Connecticut writes:

Dear Mister Condo,

I am living in a condo where the condo board has decided that we’re getting the decks enlarged. They claim “everyone wants this done,” but no such formal vote of the unit owners was ever taken. I know that a number of unit owners do not want larger decks and most certainly do not want to pay for them. Our responses fall on deaf ears.

First, we can push for an actual unit owner vote on this matter and may need to hire an attorney to make sure such a vote is taken. BUT, since this is not a matter of “maintenance,” as in necessary repairs, nor are the back decks uniform now by any means (because of the topography of the land) should those of us who do not want larger decks be forced to have them and forced to pay upwards of $10,000 each for them? Even if they get a majority vote, this does not seem fair, nor is it in the bylaws that an optional aesthetic improvement must be paid for by everyone – as it does for repairs or common ground improvements.

Mister Condo replies:

R.J., this is an interesting problem. Board Members are elected to office by democratic election of unit owners. Yet, they are taking action that a number of unit owners do not want taken. The real question here is: What do the majority of unit owners want and what do your by-laws state about this type of improvement? Depending on your by-laws and any state or local law dealing with common interest communities, the Board is likely within its rights to consider this deck enlargement program. They may even have the ability to enact it, again providing the action isn’t in violation of the condo documents. However, they do have to follow all protocols as outlined in the documents or, as you correctly state, disgruntled unit owners will hire an attorney to bring action against the Board. Many associations would require a vote of the unit owners for such an improvement because the Board is considering such a major expense. Replacing worn common elements is one thing; creating new common elements is quite another. You are on the path to getting the right action. Also, consider getting some like-minded folks on the Board during the next election cycle. If it can’t wait, and you think you have the votes to hold a recall election, you could attempt to recall and replace these Board members. However, if the majority of unit owners are in agreement with the deck expansion and improvement project, your efforts may generate little less than a thorn in the side of the Board as they continue to push the project through. Good luck!

Validity of the Vote on Condo Annual Budget and Loan

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R.G. from Hartford County writes:

Dear Mister Condo,

 

Is voting on a budget, the borrowing of money require on ballot only the percentage of ownership, and if otherwise an illegal method and would be invalid in a court of law?

 

Mister Condo replies:

R.G., I am not sure I follow your question but let me address a few of the points to see if I can add some clarity. Also, since I am not an attorney, please consider my answers as friendly advice. If you have “court of law” questions, I must advice you to seek the advice of a qualified attorney.

The Annual Budget is presented and voted upon at the Annual Meeting, where all unit owners are invited and a quorum must be achieved before any votes can be taken. Your by-laws and state law spell out the rules for quorum so as long as quorum is achieved, the outcome of the vote would hold up in a court of law, in my opinion. Some associations have the ability to borrow money as part of their governance documents; many do not and require a vote of the membership in order to be able to do so. Again, the rules for modifying documents are spelled out in your governance documents and state law. As long as quorum is achieved and the rules are followed, I see no reason the vote wouldn’t hold up in court. The percentage of ownership formula does not generally come up in voting, meaning all unit owners votes are equal – one vote per unit. If you feel your Board has wrongly passed an Annual Budget or taken out a loan on behalf of the community association, you have the ability to question it. Unless you are knowledgeable in the law in these matters, I would highly recommend consulting with an attorney to see if you have a case. Unless either is contested in court, the budget and the loan would be considered valid. For what it’s worth, I don’t know of any community association banks that will issue a loan to an association that didn’t get the proper approvals from the association before issuing the loan. Chances are, all was done in proper method. All the best!

New HOA Paint Job Has Unit Owners Seeing Red!

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D.H. from outside of Connecticut writes:

Dear Mister Condo,

Our HOA is going to repaint. The colors to be used on half the townhouses is to be gray. The vast majority of the affected homeowners do not want gray. How do we get a reluctant board to remand their decision?

Mister Condo replies:

D.H., if you follow my column regularly, you probably already know the answer. HOA Boards are made up of volunteer leaders from within the community. They are democratically elected and unelected from service by the majority vote of the unit owners. When they take actions against the desire of the majority of unit owners, they are usually rewarded with a swift removal from office at the next election. Typically, Boards would ask or survey a number of residents before selecting a new color for a property. It is far more common to simply keep the existing colors as the pallet is often already generally agreeable to residents and often have a direct correspondence to other design elements of the property. I have seen associations actually hold unit owner votes on such things because people tend to hold the color of their homes in such high esteem. Gray, in particular, can be tricky to work with because if you aren’t careful, you can create an army barracks effect, as happened in my own community many years ago. I can tell you that unit owners were not happy and seven years later, an entirely new Board selected a lovely shade of blue that still adorns this community. I wish you the same success.

How Do You Hold a Condo Annual Meeting?

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P.S. from Hartford County writes:

Dear Mister Condo,

What is the process for holding an annual meeting?

Mister Condo replies:

P.S., the Annual Meeting is the most important meeting of the year for condo unit owners. Two very important pieces of business need to be done here. Board Members need to be elected and a budget needs to be ratified. The Annual Meeting is where both of those things should be done.

Notice is of paramount importance. Once a date and location for the Annual meeting has been selected, all unit owners of record need to be given proper notice of the meeting. Unit owners should also be given the opportunity to vote by proxy. Between proxy votes and attendees, a quorum must be achieved before any business can be conducted. Your condominium governance documents outline the procedure for giving notice and calling the annual meeting as well as proxy and quorum requirements. Keep in mind that the State of Connecticut also has laws that deal with governance issues such as these which may supersede your governance documents so check with your association’s attorney to make sure you are operating in accordance with state law when you hold your Annual Meeting. All the best!