Annual Meeting- Voting

Started by JohnM79 • 26 replies • 909 views

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JohnM79 (New Hampshire)
Posts: 23

Posted:

Our HOA is in NH and has an annual meeting scheduled and the BOD is trying to make substantial changes to the bylaws which benefit the small minority. This is a second home for most owners and many do not come to the meeting or submit their proxy. We need a 2/3's or more vote of the voting power to change the bylaws either present in person or via proxy. The Association holds five proxies which the BOD always casts. I believe that these votes should be by a lottery of the 104 owners and the the five "winners" get to cast the vote. These votes are for three storage areas and two commercial units. This is the way the HOA was formed in 1987. Am I correct?

There are 104 units plus the five HOA votes ( for two commercial and three storage units). We required 2/3's vote. I believe the 2/3's would be 2/3's of 109 which means they would need 73 to hold the vote. The BOD maintains that they needs 2/3's of 104 which means 70 to hold the vote and they include the 5 votes for the common area. Am I correct that it would be 2/3's of 109?

Thanks

JohnC46 (South Carolina)
Posts: 14,265

Posted:

John

As I see it, the question is do those 5 units have the same voting rights as individual units or are they just a function of the HOA such as a clubhouse would be? I say the 5 units do not get a vote nor should they be counted in the amount of units as they are no more then a function of the association.

JohnM79 (New Hampshire)
Posts: 23

Posted:

Same voting rights as an individual owners.

AugustinD
Posts: 5,144

Posted:

JohnM79, can you quote the exact language of the bylaw pertaining to 'voting power' and amending the Bylaws?

CarolF (Florida)
Posts: 435

Posted:

Do the commercial and storage units pay assessments?

BenA2 (Texas)
Posts: 1,273

Posted:

If the governing documents actually say, 2/3 of "voting power" I would say that is 2/3 of every entity entitled to a vote, which means 73 to pass.

Who gets to cast the proxies should be stated in your governing documents.

JohnM79 (New Hampshire)
Posts: 23

Posted:

The commercial and the storage areas are not charged common charges. The commercial area is rented so the HOA collects rent.

I have attached a section of the bylaws.

📎 Attachments (1):

⏸ Downloads temporarily unavailable

📄153205110071.pdf(175 KB)

JohnM79 (New Hampshire)
Posts: 23

Posted:

Another page

📎 Attachments (1):

⏸ Downloads temporarily unavailable

📄15325669671.pdf(111 KB)

JohnM79 (New Hampshire)
Posts: 23

Posted:

Last page- could not send as a larger file.

📎 Attachments (1):

⏸ Downloads temporarily unavailable

📄153254046371.pdf(93 KB)

JohnC46 (South Carolina)
Posts: 14,265

Posted:

John

The disagreement I have is in defining a "unit". While a lived in condo and a commercial space fall within my definition of a unit, to me a"storage unit" does not. To me unless explained otherwise, a storage unit might be common property thus I do not see it as a voting unit.

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By JohnM79 on 05/03/2018 2:25 PM
Another page

Can you explain changing 4-200 from 1/108 to 1/78?

AugustinD
Posts: 5,144

Posted:

Thank you for providing some key pages.

Do the Declaration or the Bylaws define "Unit"?

Assuming for now that the three storage areas and two commercial units are "Units," by my reading:

I expect no Member is listed on the deed for these five Units. Instead, I expect the HOA as a corporation has legal title to them. The Board makes decisions on behalf of the HOA. The Board gets to cast five votes for each of these Units in whatever matter a Board majority decides. Presumably, the Board will vote the same for all five Units.

The Board wants to amend the Bylaws. To do so requires an affirmative vote of 73.

The Board cannot have it both ways (casting votes for the five units but not counting the Units as part of the "voting power").

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By AugustinD on 05/03/2018 2:57 PM
Thank you for providing some key pages.

Do the Declaration or the Bylaws define "Unit"?

Assuming for now that the three storage areas and two commercial units are "Units," by my reading:

I expect no Member is listed on the deed for these five Units. Instead, I expect the HOA as a corporation has legal title to them. The Board makes decisions on behalf of the HOA. The Board gets to cast five votes for each of these Units in whatever matter a Board majority decides. Presumably, the Board will vote the same for all five Units.

The Board wants to amend the Bylaws. To do so requires an affirmative vote of 73.

The Board cannot have it both ways (casting votes for the five units but not counting the Units as part of the "voting power")

This is I agree with.

JohnM79 (New Hampshire)
Posts: 23

Posted:

Richard,

A third building was built which contained an additional 25 units. This is why the number of units went from 78 to 108 ( 103 units plus 5 common areas).

JohnM79 (New Hampshire)
Posts: 23

Posted:

Unit means a portion of the condo designated and intended for individual ownership and use and the undivided interest in the Common area appertaining to that use.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By JohnM79 on 05/04/2018 6:54 AM
Unit means a portion of the condo designated and intended for individual ownership and use and the undivided interest in the Common area appertaining to that use.

Is this definition from the Bylaws? Or from the Declaration?

It seems like this definition is reasonably interpreted as saying that the five spaces are not Units. Yet the 1990 amendment to the Declaration that you presented, on page 1 of 153205110071.pdf, states that each "Unit" has a "percentage vote... equal to 1/108." As I think you are saying, the use of the 108 suggests the five spaces are "Units." A conflict seems to arise between the definition you give above and the 1/108. The Board seems to be making a lame King Solomon-like attempt to 'split the baby' here. The Board is saying: Yes, per the Declaration Amendment, each of the five spaces gets 1/108 of the vote. But per ___, the spaces are not Units and so do not count as a part of the Bylaws' "total voting power." This is mathematically inconsistent. As I note above, the Board cannot have it both ways.

What I know of the law here:

-- The fact that the 108 comes from a Declaration /amendment/ may be of some legal significance.

-- When conflicts between different governing documents arise, the Declaration usually trumps the Bylaws.

-- Ambiguities or uncertainties are interpreted against the author of the document.

This may be for a court to sort out. If forced to bet, then I think the number of affirmative votes required to pass an amendment will be ruled 2/3 * 108 = 72.

I think the Board is setting itself up for a legal challenge. I would write the Board a formal letter, sent certified mail, stating your concerns and asking that the HOA attorney to rule on what the magic number for passage of the Bylaws amendment is. Report back.

(Where did the 109 come from?)

JohnM79 (New Hampshire)
Posts: 23

Posted:

Augustin,

I appreciate your help. The definition is from the declaration.

JohnM79 (New Hampshire)
Posts: 23

Posted:

The 109 was an error on my part. I thought that we had 104 units plus the 5.

JohnM79 (New Hampshire)
Posts: 23

Posted:

Quick Question- In order to even entertain the change in the bylaws, we would need 67 to be present either in person or via proxy. We need 72 to vote so the 67 plus 5 HOA votes. Is that correct?

JeffT2 (Iowa)
Posts: 880

Posted:

Quote:

It should be easy to figure out if those storage and other properties are condo units. By law, your condominium declaration must have a list of every unit, and for every unit a percentage (or fraction) of the undivided interest in the common areas as well as a statement of the purposes for which each of the units are intended and restricted as to use. That list should be easy to find in your declaration. If the storage units are not listed or are not allocated an interest in the common areas, then they are not units and should not get a vote.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By JohnM79 on 05/04/2018 11:34 AM
Quick Question- In order to even entertain the change in the bylaws, we would need 67 to be present either in person or via proxy. We need 72 to vote so the 67 plus 5 HOA votes. Is that correct?

It sounds like you are talking about the definition of a quorum. Nationwide and in general, HOA membership meetings cannot legally proceed unless a certain percentage of the owners are present in person or by proxy. Usually this is some percentage between 10% and 25%. Can you quote what your Bylaws say about what a quorum is?

JohnM79 (New Hampshire)
Posts: 23

Posted:

I know that we will have enough for quorum. To vote and change the bylaws, I believe we need 67 present or via proxy plus the 5 HOA votes in order to vote on the bylaws.

JohnM79 (New Hampshire)
Posts: 23

Posted:

The Units are listed in the declaration.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By JohnM79 on 05/04/2018 1:58 PM
I know that we will have enough for quorum. To vote and change the bylaws, I believe we need 67 present or via proxy plus the 5 HOA votes in order to vote on the bylaws.

Oh I think I understand your meaning now. If less than {67 + the 5} attend in person or by proxy, and assuming 72 is the minimum needed to pass the amendment, then the amendment fails.

JohnM79 (New Hampshire)
Posts: 23

Posted:

Thanks

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By AugustinD on 05/04/2018 2:19 PM
Posted By JohnM79 on 05/04/2018 1:58 PM
I know that we will have enough for quorum. To vote and change the bylaws, I believe we need 67 present or via proxy plus the 5 HOA votes in order to vote on the bylaws.

Oh I think I understand your meaning now. If less than {67 + the 5} attend in person or by proxy, and assuming 72 is the minimum needed to pass the amendment, then the amendment fails.

Please show me where the HOA gets 5 additional HOA votes per your own posting of this information: http://www.hoatalk.com/Portals/0/NTForums_Attach/15325669671.pdf

I suggest you look at the definitions in your CCR’s OR State Law to see what is noted at a “UNIT”. My last HOA had “HOA Common Area Property”; however, that property was not considered an HOA Unit with regards to Voting.

AugustinD
Posts: 5,144

Posted:

Janet, the OP (JohnM79) explained how a building was added. Per page 1 of 153205110071.pdf (an amendment) each "Unit" has a "percentage vote... equal to 1/108." This amendment changed the voting percentage of each unit from 1/78 to 1/108. One does not get to 108 units unless one includes the five spaces JohnM79 described. Also JohnM79 says the spaces are listed as Units in the Declaration. Who should vote these five spaces? The HOA has title. At present, I think the votes may be cast as the Board directs.

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