hoa board voting by email

Started by JimP18 • 22 replies • 8737 views

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JimP18 (Florida)
Posts: 1

Posted:

hoa board meets monthly. Non emergency topics come via email and the president request a vote from the
directors to approve or not approve by email. The HOA is in Florida and the documents do not address this

TimB4 (Tennessee)
Posts: 21,059

Posted:

Expecting that your Association is incorporated as a non-profit (most are), here is the information about actions without meetings from the corporate code:

617.0821 Action by directors without a meeting.—
(1) Unless the articles of incorporation or the bylaws provide otherwise, action required or permitted by this act to be taken at a board of directors’ meeting or committee meeting may be taken without a meeting if the action is taken by all members of the board or of the committee. The action must be evidenced by one or more written consents describing the action taken and signed by each director or committee member.
(2) Action taken under this section is effective when the last director signs the consent, unless the consent specifies a different effective date.
(3) A consent signed under this section has the effect of a meeting vote and may be described as such in any document.

As a rule of thumb, if the issue can wait until the next scheduled meeting for a decision then it should wait. If the issue can't wait until the meeting but can wait the required time to provide proper notice for a meeting, then a special board meeting should be called and notice provided. If the issue can't wait for a decision at the next regular meeting or for a special meeting to be organized and called, then an action without a meeting would be appropriate.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Board members are voting by email on association business outside of announced meetings?

In AZ, we have an open meeting law for associations that is similar to the statute for state government bodies. The Attorney General issued an opinion on the latter statute some years ago wherein he stated that the purpose of the law was to put the deliberations before the public. Except for an emergency, holding discussions outside of an announced meeting was a violation of that law.

The AZ HOA meeting law goes beyond that and requires that members be allowed to speak on an issue before a vote is taken. Email discussions among board members would prevent that from happening and thus would violate the letter and the spirit of the law.

I do not know how these laws compare with Florida's.

KarenC15 (Florida)
Posts: 118

Posted:

Jim,
My HOA is also in Florida and they regularly email have impromptu meetings on site that involve several board members. The statutes seem very clear to me that the members are entitled to hear non-emergency or privacy protected discussions, especially the deliberations. If boards meet via email and outside of regular meetings, this disenfranchises members for whom those board members work.

Hatred is contagious, so one should work to avoid it.

RichardP13 (California)
Posts: 1,767

Posted:

I have a copy of Bylaws of an association in Florida. Under the section titled "Board of Directors", it states "Action without a Meeting, Except to the extent prohibited by law, the Board shall have the right to take any action with a meeting by obtaining the written approval of the required number of Directors. Any action so approved shall have the same effect as though taken at a meeting of Directors". They are governed by Section 720 of Florida statues.

JeanneK3 (Maryland)
Posts: 562

Posted:

Maryland Condo and HOA law says that board meetings must be announced and open to the membership precludes any voting by e-mail.
Jeanne

CarolR11 (Colorado)
Posts: 2,563

Posted:

Based on Richard's & Tim's replies & FL law, it appears to be OK to take action without a meeting. The decision seems to be required to be unanimous.

CA laws are similar to the ones Larry cites re: AZ. And I agree with that approach as deliberations/decisionsoccur in front of homeowners and not behind their backs.

I wonder why a "non emergency topic" cannot wait until a Board meeting. Is this the president's personal philosophy, Jim? Are you on the Board?

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Jim

As you can see there are differences from documents to documents and even trickier, from state to state.

In my HOA we are transitioning from the developer to we owners. While overall it has been cordial and polite, we have one cantankerous owner who moved here from FL and keeps spouting about how it was done in FL. When push comes to shove he does not understand how it is done in SC but also he does not even understand how it was properly done in FL.

I have politely/professionally called him out enough that I have may have gotten him to read our docs and SC Articles of Incorporation. He did, at least one time, admit his prior comments were incorrect concerning SC.

AnnH6 (Florida)
Posts: 27

Posted:

Florida Statute 720: A meeting of the board of directors of an association occurs whenever a quorum of the board gathers to conduct association business. All meetings of the board must be open to all members except for meetings between the board and its attorney with respect to proposed or pending litigation where the contents of the discussion would otherwise be governed by the attorney-client privilege. The provisions of this subsection shall also apply to the meetings of any committee or other similar body when a final decision will be made regarding the expenditure of association funds and to meetings of any body vested with the power to approve or disapprove architectural decisions with respect to a specific parcel of residential property owned by a member of the community.

I would guess that voting by email is in fact, conducting the business of the Association.

PeterD3 (Florida)
Posts: 708

Posted:

Quote:

Posted By TimB4 on 02/17/2014 3:00 PM
Expecting that your Association is incorporated as a non-profit (most are), here is the information about actions without meetings from the corporate code:

617.0821 Action by directors without a meeting.—
(1) Unless the articles of incorporation or the bylaws provide otherwise, action required or permitted by this act to be taken at a board of directors’ meeting or committee meeting may be taken without a meeting if the action is taken by all members of the board or of the committee. The action must be evidenced by one or more written consents describing the action taken and signed by each director or committee member.
(2) Action taken under this section is effective when the last director signs the consent, unless the consent specifies a different effective date.
(3) A consent signed under this section has the effect of a meeting vote and may be described as such in any document.

As a rule of thumb, if the issue can wait until the next scheduled meeting for a decision then it should wait. If the issue can't wait until the meeting but can wait the required time to provide proper notice for a meeting, then a special board meeting should be called and notice provided. If the issue can't wait for a decision at the next regular meeting or for a special meeting to be organized and called, then an action without a meeting would be appropriate.

Unfortunately Tim the statutes do not mention or define "appropriate" as you refer to in your last sentence.

The only recourse is to see that the 'written consent' is properly recorded in assn. records.

Failure to do so then gives the membership the opportunity to challenge the 'act' and provides a means of invalidating (or possibly reversing) the action through legal due process.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By PeterD3 on 02/18/2014 5:02 PM

Unfortunately Tim the statutes do not mention or define "appropriate" as you refer to in your last sentence.

I do believe I used the word "appropriate" in a rule of thumb. As such, I was not trying to refer to any specific statute.

MikeS1
Posts: 521

Posted:

If it's time sensitive, I can see voting electronically, which we can do in Virginia as long as the vote is unanimous. We also must bring up the electronic votes in the next meeting and record them in the minutes.

It looks like you can do the same in Florida as long as your as you meet certain conditions. "Most associations are not-for-profit corporations. Section 617.0821 of the Florida Not-For-Profit Corporation Act states that unless the articles of incorporation or bylaws provide otherwise, any action that a board could take at a meeting may be taken without a meeting if the action is approved by all members of the board. The action must be described by one or more written consent, describing the action taken, and the consent form must be signed by each director."
http://www.floridacondohoalawblog.com/2013/04/articles/qa/question-about-e-mail-voting-in-florida-difficult-to-answer/

PeterD3 (Florida)
Posts: 708

Posted:

Quote:

Posted By TimB4 on 02/18/2014 5:57 PM

Posted By PeterD3 on 02/18/2014 5:02 PM

Unfortunately Tim the statutes do not mention or define "appropriate" as you refer to in your last sentence.

I do believe I used the word "appropriate" in a rule of thumb. As such, I was not trying to refer to any specific statute.

Non-sequitor.

Corporations are governed by ROTs.

JoK2 (California)
Posts: 198

Posted:

Quote:

Posted By JeanneK3 on 02/17/2014 4:53 PM
Maryland Condo and HOA law says that board meetings must be announced and open to the membership precludes any voting by e-mail.
Jeanne

The Maryland Homeowners Act does spell out the rules for meeting announcements for the board and the community, and it does provide for electronic transmission of votes or proxies. It goes further to differentiate between what is allowed for a closed sessions. Our bylaws spell out that the BOD can take action without a meeting and since we only meet quarterly, that has been necessary and quite effective. All of the actions we've taken via email, would fall into the closed session rules and looking at it further, this could be one of the statutes that actually had common sense put into it. The items allowable in closed session seem to be ones that are time sensitive.

CarolR11 (Colorado)
Posts: 2,563

Posted:

JoK, our bylaws also say that we can take action without a meeting. But state civil code now states that we may not unless an emergency.

I'm wondering, JoK because I don't sen to understand it. Are you saying that MD law permits HOA board to vote by proxy electrically?

JohnC46 (South Carolina)
Posts: 14,265

Posted:

So can we sum this up for the original poster?

I believe the answer it is depends on the association structure, issue, which screwed up/conflicting FL whatever applies, etc.

So there are maybe several answers:

1. You did not give us enough information about your association's structure.

2. Some like to post even when they have no Fin idea about FL.

3. FL is screwed up when it comes to this stuff that even most Floridians do not understand it.

So OP, have we helped or hurt?............LOL

JoK2 (California)
Posts: 198

Posted:

Quote:

Posted By CarolR11 on 02/20/2014 2:08 PM
JoK, our bylaws also say that we can take action without a meeting. But state civil code now states that we may not unless an emergency.

I'm wondering, JoK because I don't sen to understand it. Are you saying that MD law permits HOA board to vote by proxy electrically?

Thanks for asking for clarification, MHAA, 11B-113.2 states it allows for electronic voting/proxy for homeowners. It is silent regarding the Board of Directors using that option. Therefore, we look at our CCR's and Bylaws and they state we can take action without a meeting, as if we were holding a meeting, and we have had discussions and then voted by email on issues that would of been considered in a closed session. And I can honestly say up to this point, they were all emergencies as we've been slowly getting our HOA up to par. Having said that, as we are a corporation, I will go back to State Corp law to see if it says anything that conflicts with this. Thanks for asking!

CarolR11 (Colorado)
Posts: 2,563

Posted:

Oooooo, Jo, I wish we had electronic voting in CA for owners. But such a bill didn't make it through the legislature in '13 and I'm not sure of its current status.

In CA, by the way, even ex. sees. matters cannot be handled by action without a meeting unless an emergency.

Right, MD's Corps Code might help. If your Board follows Robert's Rules of Order, it might help too.

It's wonderful that you all are getting your HOA back on track!

BellaM2 (Florida)
Posts: 61

Posted:

Jim18, I am on a Board in Florida, I recently had the same experience with our CAM having us vote by email. The HOA's Attorney informed us, email voting NEVER. The BOD can Discuss, Discuss by email, but never Motion and never Vote by email.

JoK2 (California)
Posts: 198

Posted:

Quote:

Posted By CarolR11 on 02/21/2014 12:50 PM
Oooooo, Jo, I wish we had electronic voting in CA for owners. But such a bill didn't make it through the legislature in '13 and I'm not sure of its current status.

In CA, by the way, even ex. sees. matters cannot be handled by action without a meeting unless an emergency.

Right, MD's Corps Code might help. If your Board follows Robert's Rules of Order, it might help too.

It's wonderful that you all are getting your HOA back on track!

Thanks Carol, you and everyone else here has helped me do that. I've had a chance to get this from the MD state code and it was good to look it up!

§2–505 I actually learned, if I read it correctly, the entire HOA can vote electronically in place of a meeting. And that is new information for me, and very, very valuable information, in light of our most recent reason for having our third special meeting in five months! http://mgaleg.maryland.gov/2014rs/statute_google/gca/2-505.pdf

§5–619 This actually gives us further permission by referencing the by laws and that was nice to see for a change, IMHO!
http://mgaleg.maryland.gov/2014rs/statute_google/gca/5-619.pdf

I've not found any specifics on the board being able to vote, however in light of being given to take action without a meeting, it seems that we are able to do so. The important factor to consider is what Jeanne referred to and that is keeping special meetings on topics allowed in closed session only.

We hold our meetings by Parliamentary Procedure, and although I haven't read up on RR, it seems about the same. Thanks again for the brain training!

AnneB4 (Florida)
Posts: 19

Posted:

BellaM2, do you happen to know if the attorney's statement is based on a legal ruling or their interpretation? I'm in FL as well and our new MC is telling our president that nothing can be done via email, that having a quorum of board members respond to an email means a meeting was held. I am not of that opinion and am looking for things to back up my opinion. Thanks

KerryL1 (California)
Posts: 14,550

Posted:

Would be better to start a new thread, Anne, since you're in FL and we have a few good posters from FL. Also laws may have changed since nearly 2 years ago.

AnneB4 (Florida)
Posts: 19

Posted:

Thanks for the suggestion KerryL, I did.

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