Special Meeting Notice - Getting Specific on the Language

Started by DianneL1 • 11 replies • 2395 views

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DianneL1 (Washington)
Posts: 34

Posted:

Special Meeting Notice - Getting Specific on the Language
Our Bylaws state that proper notice for a Special Meeting is a minimum of 10 days prior to the meeting day, with written notice given either by hand-delivery or by USPS First Class Mail. The first class mail was received in my mail box on Monday, and the meeting is called for next Tuesday. This is not 10 days notice.
When homeowners questioned the manager, the manager indicated that the letters were “Post-Marked” on Saturday. This is a very important meeting that requires a 67% vote to change our Declaration and the majority of the homeowners need more time to understand the issues. I need more time to gather the proxies of those who will not be able to attend. Anyone out there ever dealt with such a thing?
Your thoughtful advice will be appreciated.

GlenL (Ohio)
Posts: 5,491

Posted:

I was going to say you were out of luck and ask what you expected to accomplish with one more day HOWEVER in reviewing Washington HOA Statutes it would seem that your By-Laws don't comply with state law on this. (emphasis added)

RCW 64.38.035
Association meetings — Notice — Board of directors.

(1) A meeting of the association must be held at least once each year. Special meetings of the association may be called by the president, a majority of the board of directors, or by owners having ten percent of the votes in the association. Not less than fourteen nor more than sixty days in advance of any meeting, the secretary or other officers specified in the bylaws shall cause notice to be hand-delivered or sent prepaid by first-class United States mail to the mailing address of each owner or to any other mailing address designated in writing by the owner. The notice of any meeting shall state the time and place of the meeting and the business to be placed on the agenda by the board of directors for a vote by the owners, including the general nature of any proposed amendment to the articles of incorporation, bylaws, any budget or changes in the previously approved budget that result in a change in assessment obligation, and any proposal to remove a director.

(2) Except as provided in this subsection, all meetings of the board of directors shall be open for observation by all owners of record and their authorized agents. The board of directors shall keep minutes of all actions taken by the board, which shall be available to all owners. Upon the affirmative vote in open meeting to assemble in closed session, the board of directors may convene in closed executive session to consider personnel matters; consult with legal counsel or consider communications with legal counsel; and discuss likely or pending litigation, matters involving possible violations of the governing documents of the association, and matters involving the possible liability of an owner to the association. The motion shall state specifically the purpose for the closed session. Reference to the motion and the stated purpose for the closed session shall be included in the minutes. The board of directors shall restrict the consideration of matters during the closed portions of meetings only to those purposes specifically exempted and stated in the motion. No motion, or other action adopted, passed, or agreed to in closed session may become effective unless the board of directors, following the closed session, reconvenes in open meeting and votes in the open meeting on such motion, or other action which is reasonably identified. The requirements of this subsection shall not require the disclosure of information in violation of law or which is otherwise exempt from disclosure.

[1995 c 283 § 7.]

Studies show that 5 out of 4 people have problems with fractions

DianneL1 (Washington)
Posts: 34

Posted:

Clarification: We are a Condo Complex. So, Condo Law: 64.34 is what we follow. Sorry for the confusion. Just when I thought I put all the details in!

JanetB2 (Colorado)
Posts: 4,219

Posted:

Hi Dianne:

The manager is correct … in the following statute potentially the language “shall cause” in essence is “shall be postmarked or hand delivered”. Unfortunately sometimes items are sent at the last minute allowed by law in order to potentially cut down the time to gather proxies. If this does not seem fair then the homeowners in your state need to contact their legislators and push to have this statute amended to allow more time.

RCW 64.34.332 Meetings.
A meeting of the association must be held at least once each year. Special meetings of the association may be called by the president, a majority of the board of directors, or by unit owners having twenty percent or any lower percentage specified in the declaration or bylaws of the votes in the association. Not less than ten nor more than sixty days in advance of any meeting, the secretary or other officer specified in the bylaws shall cause notice to be hand-delivered or sent prepaid by first-class United States mail to the mailing address of each unit or to any other mailing address designated in writing by the unit owner. The notice of any meeting shall state the time and place of the meeting and the items on the agenda to be voted on by the members, including the general nature of any proposed amendment to the declaration or bylaws, changes in the previously approved budget that result in a change in assessment obligations, and any proposal to remove a director or officer.

SusanW1 (Michigan)
Posts: 5,202

Posted:

One would HOPE that changing a declaration received more attention to the process than just calling the meeting to vote on the issue.

Usually there is some kind of hint the board is working on this issue to be presented at the next Annual Meeting, committee or open discussions, maybe even a survey, and some member input. Then, with the back work all done, the vote goes relatively easy.

It sounds like you just heard about this proposed amendment.

DianneL1 (Washington)
Posts: 34

Posted:

Thank you Janet, Glen, and Susan. Much appreciated feedback and reality check!
(I'm provided more detail than needed just because I think it may be interesting for others to read. These Associations all seem to have unique problems and ours is no exception)

The Board was specifically instructed (by a majority vote at our annual meeting last month) to not spend money to have an amendment written. Instead, the homeowners wanted to review the opinions of two attorneys on the whether or not we even need the amendment because we’d already received one that was against the amendment. They didn’t listen.

(One month earlier) The Board recently hired the new Property Manager and a majority of the homeowners showed up at the annual meeting to voice their concern about it. The contract didn’t meet the requirements of our Declaration; the cost was more; the reviews for this company are bad; and all this occurred without a word to the ownership despite our attempts to be invited to their Board Meetings – which were closed. We were all a little upset. The new PM has a business relationship with the Attorney who helped push RCW 64.34. They are both proud members of CAI. Now we have an amendment before us (written by the same Attorney) which none of us wanted. We’ve got our suspicions about what is going on here.

It’s been a game of cat and mouse. The homeowners called a special meeting for the 28th of April to remove the Board (just two of them left). The PM put out the Board’s Special Meeting for the 19th first to push their agenda.

Luckily, we have 5 qualified candidates to run for the board. Time for a shake-up.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Want some possible good news? You may NOT need to have a special meeting but still have a special meeting..HUH? Our HOA needed to change our documentation. That required a special meeting. Try having 90% of 107 homeowners get together in 1 place at 1 time to sign a piece of paper...It AIN'T happenning!!!

Here's what we did...Our lawyer drafted 2 proxy votes. 1 was for agreeing with the changes and yada yada... The OTHER was AGREEING to NOT attend a special meeting. The owner's had to sign that sheet to basically give up their "rights" to a have a special meeting for them to sign the OTHER proxy vote. This allowed us to go door to door or mail the votes out. We no longer had to have a "special meeting" if the owner agreed NOT to attend. Make sense?

You may want to ask if this is possible when drafting the proxy voting. You could still have a special meeting and simply the ones who attend not sign the 2nd sheet. Hope this helps...

Former HOA President

DianneL1 (Washington)
Posts: 34

Posted:

Melissa,
We were all very confused about the amendment. The notice of the meeting told us to mail in the consent form (attached) to the PM's office. The first item on the agenda says "discussion with question and answer period: Attorny Present".
Well, why would you send in your consent before we hear the discussion?
Also, why would there be no proxy? Is Consent the same as Proxy in this case?

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TimB4 (Tennessee)
Posts: 21,059

Posted:

Dianne,

Based on the form you posted it appears that they will use the "consent" form as a proxy and/or a ballot using the mail. I would suspect that they had it drawn up by the attorney but that might not be the case.

If you are against the issue, I would suggest you check out the quorum requirements in your Association governing documents, Your States proxy laws (usually in the corporation code and would apply if your Association is incorporated) and your States HOA/Condo laws on membership votes (to see if they allow voting by mail). Then bring these issues up as a point of order at the meeting.

Tim

DianneL1 (Washington)
Posts: 34

Posted:

Thanks Tim,
The PM issued a statement thru email last night that owners can also bring the consent form to the meeting. She also mentioned that the mail-in consent forms should be received at their office 24 hours before the meeting (good to know).
The amendment to the Declaration is regarding the number of Directors. Currently, the Dec states 3 and the Bylaws state 5. So now the amendments states “…a board of directors of at least three (3) directors.”
Most people (now that the money has been spent) want a 5 member board again and would consent “for” to the amendment. The trouble is, the Second item on the agenda is to vote in 3-5 new board members. Don’t we need a proxy for this? How are absent owners supposed to vote for their favorite candidate? The consent from is only “for” or “against” the amendment, no?
Please help. Thanks!

JanetB2 (Colorado)
Posts: 4,219

Posted:

Hi Dianne:

You might call and make sure if they had the “consent” form they sent to everyone reviewed by an attorney. The form does not state Proxy and I am concerned it could cause potential issue if challenged. It might be a small picky item, but sometimes those items can bite. What they should have potentially done is sent a proxy to everyone with both the amendment and to vote for new board members. If absent owners want they can send/submit a proxy with a vote for their candidate, but need to insure they sign AND date as noted below. The following is your state statute:

RCW 64.34.340 Voting — Proxies.

(1) If only one of the multiple owners of a unit is present at a meeting of the association or has delivered a written ballot or proxy to the association secretary, the owner is entitled to cast all the votes allocated to that unit. If more than one of the multiple owners are present or has delivered a written ballot or proxy to the association secretary, the votes allocated to that unit may be cast only in accordance with the agreement of a majority in interest of the multiple owners, unless the declaration expressly provides otherwise. There is majority agreement if any one of the multiple owners casts the votes allocated to that unit without protest being made promptly to the person presiding over the meeting by any of the other owners of the unit.

(2) Votes allocated to a unit may be cast pursuant to a proxy duly executed by a unit owner. If a unit is owned by more than one person, each owner of the unit may vote or register protest to the casting of votes by the other owners of the unit through a duly executed proxy. A unit owner may not revoke a proxy given pursuant to this section except by actual notice of revocation to the person presiding over a meeting of the association. A proxy is void if it is not dated or purports to be revocable without notice. Unless stated otherwise in the proxy, a proxy terminates eleven months after its date of issuance.

(3) If the declaration requires that votes on specified matters affecting the condominium be cast by lessees rather than unit owners of leased units: (a) The provisions of subsections (1) and (2) of this section apply to lessees as if they were unit owners; (b) unit owners who have leased their units to other persons may not cast votes on those specified matters; and (c) lessees are entitled to notice of meetings, access to records, and other rights respecting those matters as if they were unit owners. Unit owners must also be given notice, in the manner provided in RCW 64.34.332, of all meetings at which lessees may be entitled to vote.

(4) No votes allocated to a unit owned by the association may be cast, and in determining the percentage of votes required to act on any matter, the votes allocated to units owned by the association shall be disregarded.

Here is a link to the condominium statutes, in case you need for future reference:

http://apps.leg.wa.gov/rcw/default.aspx?cite=64.34

DianneL1 (Washington)
Posts: 34

Posted:

Thanks for the added input Janet,

"It might be a small picky item, but sometimes those items can bite." VERY True!

I asked the Property Manager why a proxy was not included in the packet for the special meeting so that absent owners could vote for new Directors for the Board. The consent form for the amendment - as you saw - was really just for the approval of the amendment and nothing more. The PM replied, "If you have a quorum then elections can be held." It was like talking to a brick wall. So, I created a proxy (from a previous proxy) and distributed it. I hope the PM allows these proxies at the Special Meeting tonight.

We were told that the two current Board Members will resign if the amendment passes.
This is just fine with everyone I'm sure. We only have 18 units in the community and 3 of them are in foreclosure. We have 8 nominees for the board seats! Time for change!

Thanks again for all your advice!
Dianne L
Emerald City

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