Statutory time limit to challenge election results in VA

Hi,
Our HOA is in Chantilly, Fairfax county, VA. Is there a statutory time limit to challenge election results? Our HOA election was held june,2013. All the results were validated by the management company. Yesterday, the member who got unseated is threatening to sue the HOA for conducting elections in a improper way. That is rougly 11 months after. Is it valid?

The complaint is that there were too may proxies hand carried to the election meeting. These proxies were cast and signed by the homeowner(s). They were hand carried by a community resident. Are these invalid?

Thanks for your time.
Mahesh

Mahesh,

From my research, there is a limitation on challenging an amendment to the governing documents. See VA § 55-515.1, or § 55-79.71 if in a condominium.

As for elections for Directors, VA § 13.1-861, applicable if your Association is incorporated as a non-profit (most are), allows for elections to be challenged. However, I could find nothing that limited the time frame for when that challenge could occur.

I suspect that the date the records were requested, the length of time it took to have access to the records granted, etc. would all come into play as to if a challenge is valid.


I suppose that this should be a decision for the courts.

However, if I were on your Board, I would encourage the Board to conduct it's own investigation. Perhaps inviting that individual to participate. The Board would essentially be investigating the MC, since they were the election officials, therefore, the MC could not be used as part of the investigation.

I would do this to: a) was something amiss that needs corrected. b) Resolve the issue at the lowest level possible (i.e. try to keep it from going to the courts).


Statutes regarding proxies are contained within the corporate statutes.
See VA Nonstock Corporation Act, applicable if your Association is incorporated as a nonprofit (most are).

Specifically, you should review:
§ 13.1-847. Proxies
§ 13.1-847.1. Voting procedures and inspectors of elections
and § 13.1-848. Corporation's acceptance of votes.

I never worry about threats of lawsuits that come from non-attorneys. If he had engaged the services of an attorney I would take him a little more seriously. Even then, I usually don't worry until the process server shows up with a summons and complaint.

The type of lawsuit this member is talking about will set him back a minimum of $20,000 with no upper limit. If he loses he could end up being ordered to pay your costs plus his own. Since it does not appear that he has been willing to pony up the first $300 for an initial consultation I would not lose any sleep over his threats.

Thank you RwT, TimB4, LarryB13 for your kindness in helping me.

I looked at the inquiry and its findings conducted by the attorney. The attorney refers to VA Property Owner's Association Act 55-508 which does not contain any information about proxies and statutory time limit. I also checked our HOA's bye laws and it does say that a person can cast proxy votes and is limited to 5. But in our case, each of the proxy vote(s) were cast by the owner(s) themselves. It was not a single person casting proxy votes for others. The owner(s) themselves were casting their own proxy vote(s). And the owners indicated on the proxy that they are voting and agreeing for the quorum. I went around and collected these proxies and then hand it over to the mgmnt. company before the election night. I had to do this because, majority of the residents don't respond well to these kind of things and we have to conduct election multiple times because quorum is not there. It costs money & time. We need atleast 20% of roughly 130 homes.

Nobody on the HOA board was informed about this complaint and the initiation of the inquiry by the board except one person who is president. I feel that there was no discussion and was a unilateral decision. The person who was unseated last year was previous president. The current president and the unseated one had uninterrupted stint on the board for last 12 years.

Facts of the complaint so far is: The proxy form was incorrect format, hence no quorum and no vote

Suggestion by the attorney is to unseat the last two members who got elected in 2013 and re-instate 2 previous members even though their tenure is over.

I compared the previous proxy form and the suggested one. Except for moving words around, they are same.

This whole thing has turned sour because the new members are making the processes more transparent, not allowing for any unilateral decision. The old guard is not happy with it. I agree this is a frivolous attempt to unseat newly elected members and all the parties are ganging up on new members. Also, the attorney is our HOA auditor as well, which we recently renewed the contract to continue. Is it not a conflict of interest?

Thank you so much for your time.
Mahesh

Mahesh,

Is your post related to the one at
http://www.hoatalk.com/Forum/tabid/55/forumid/1/postid/173033/view/topic/Default.aspx

That post is also from someone in Virginia and mentions a limit of five proxies.

Tim,

It was pretty clear in the other thread (Mike's) that the five-proxy-limit was something in his associations bylaws. But in this thread the OP stated in a follow-up, "I also checked our HOA's bye laws and it does say that a person can cast proxy votes and is limited to 5."

This week is the first time I have encountered bylaws with limitations on how many proxies a person may vote. But in one week we have two posters, each from Virginia and each citing a limit of five proxies. I am wondering if both parties are from the same association or if this is just a coincidence.

Thanks TimB4, LarryB13.

I'll look into the thread you sent me.

If the owner doesn't want to physically be at elections but want to vote, they chose to fill in this proxy form to exercise their vote. So, they fill up the proxy form as instructed, sign it and mail it as instructed. Nobody voted on their behalf, they themselves filled it, chose the candidate and signed it. In this occasion, instead of mail, one designated person collected all the proxy votes and gave it to the management company. Will that work towards being valid?

Thanks
Mahesh

Thanks TimB4.

How can a home owner vote using the proxy form in the situation where there is no individual available to act on their behalf? The home owner is unable to attend the election meeting. The home owner is required to cast their vote as well as indicate that they are part of quorum. What should home owner do in this situation?

Above situation is a typical scenario in our community.

Thanks
Mahesh

Hello TimB4,
The ballots contained choices of their vote and the quorum selection. Will this be a valid vote and provide required quorum? This ballot was also signed by the home owner.

Thanks
Mahesh

Thank you so much TimB4. Yes, our HOA allows either by fax or by mail. I hand carried the ballots openly to the management company. They accepted it and counted those as valid. That's what makes it confusing. At that time every one was ok, but after 11 months things have turned sour, because the member did not get re-elected.

Thanks
Mahesh