Another Voting Issue

At our recent annual meeting, a resident showed up with the intent to participate. I overheard our management agent discussing his status and then hand him a ballot for voting. I spoke to the agent and learned that for his home, his wife was listed on the property records as the owner of record and he is not included. I instructed to have his ballot retrieved as our by-laws clearly state that association members are "owners of record" for the property. He argued with the decision stating that under Virginia Law, they maintain a tenancy by the entirety and he is as much an owner as she. I said that it sounds like a personal legal issue and that under the rules of the community he does not have a vote - his wife does. He said that if his wife dies, the house is legally his and that the state law gives him a right to vote in community affairs. I told him to come back after his wife dies, or to straighten out the record with the county property records, whichever he prefers, but that until his name is on the official title to the property and reflected as such in county records, he will not have a vote in the community. He is welcome to stay and observe and we recognize him as a resident but not as a member.

What do you think?

Definition:
tenancy by the entirety - joint ownership of title by husband and wife, in which both have the right to the entire property, and, upon the death of one, the other has title (right of survivorship). Tenancy by the entirety is used in many states and is analogous to "community property" in the seven states which recognize that type of property ownership.

I'm afriad that I can't quite grasp your answer. Sorry. In our case, both might be on the note and thus obligated to pay, but we have to go by what is on the published county land records. The husband did not bring any mortgage paperwork with him. I would not expect him to and I'm not willing to accept that as evidence of anything other than his obligation to pay the bank. We stand by our need to see names on the county records to determine membership.

It might be that this case is the opposite of what you describe - both names on the mortgage but only hers on the title?

He showed up with an axe to grind with me due to a past encounter where I acted as a homeowner and resident rather than in any Board capacity and he was looking for an opportunity to stir up trouble, so I was just as glad to see him leave as stay. I can honestly say that the decision to deny him a vote was based in our by-laws and not im any personal feelings toward him and I did not want any precedent set for improper voting within the community.

Yes, I have an issue (or rather he certainly seems to have one with me) but am well able to keep it outside of HOA affairs. What happened between us was not related to the HOA in any way.

So the probablity is that he is likely not on the note and that's why he's not on the deed, right? According to our rules, he may not be considered a voting member and if that household is to vote, his wife must attend the meeting. It's perhaps unfortunate that the case involved him given our history, but I would have insisted the same had in been any other household in the community.

In setting up the meeting, I depend on our management company to do their due diligence and verify current county ownership records and list them accordingly on the eligible voter list, just as I expect them to report and record eligible voters according to those who are current in paying their quarterly assessments.

My question was does anyone else have a situation or by-laws where this nuance in state law would have led to a different resolution on allowing a person to participate in community business?

CjF

Your original post said "What do you think?", not what if any situations others may have had. The person's reference to Virginia law only applies to property ownership, not membership voting rights in an HOA or non-profit corporation. His rights under tendency by the entirety only takes effect once the property ownership changes hands such as selling, death, divorce, etc. Voting rights within an Association are spelled out in the CCR's and Bylaws.

Our original Bylaws allowed non-owners to serve on the Board, but our CCR's stated only owners may serve. Over the last three years our management companies have allowed non-owners to serve on the Board, against our governing docs. As an owner I would want only owners representing my interests as elected Board members. Non-owners and tenants are very welcome to serve on our various community committees.

CjF,

As you pointed out, the Articles of Incorporation specifies who a member is. Although you were in your right to enforce the governing documents, I believe - based on what you posted - that you went about it the wrong way. You should have explained that the laws allow him to vote if he has his wife's proxy.

Per VA Non-Stock Corporation Act, § 13.1-847. Proxies a proxy could have been easily gotten just by sending him back for his wife's signature, or per theVirginia Property Owners Act, § 55-515.3. Use of technology it could have been interpreted that a simple phone call to his wife to get the authorization could have been enough.

Again, I believe you were right in enforcing the letter of the governing documents. However, as a member of the Board you should have also tried to resolve the issue within the guidelines of the current law. I believe that this is what your managing agent was attempting to do.

Additionally, since you admitted that there is a personality conflict between the two of you. Therefore, I believe that you should have turned the issue over to other board members to remedy.

Tim

CjF,

Whether or not VA is a community property state, only the person who's name is on the deed is the owner of record. If your docs state owner's of record are members and only member's shall hold office and/or vote,then this person does not have that authority. However,as others have stated, this person can be given a proxy but that proxy would only be good for voting. I don't know what the VA HOA laws state,but in AZ a member has the authority to name someone as their designated rep, in writing, and that designated rep has the authority to attend meetings and speak on behalf of the member.

CJF,

My association in Fl. requires anyone with ownership of a unit, has to register their intentions with the HOA as the "VOTER OF RIGHTS" This and only this person can vote in any association matters. Husband and wife can both be the Voter but one OR the other can vote, not both at the same time. Now if this guy actually is an owner as he says, but is not on the deed, he still may have the right to vote as a rep of his wife. But he needs to be put on the HOA records as such.