Annual Meeting / restrictions / Seeking solution

Started by TammyC3 • 39 replies • 654 views

💬 Join us to post & get advice from 50,000 HOA & Condo leaders.

⚡ Takes 30 seconds

Already a member? Log in

TammyC3 (New Mexico)
Posts: 102

Posted:

I have the deepest appreciation for this site. Thanks!

I came to the forum searching for answers to Covid/Annual Meeting questions.
I found answers, but they just don't solve the issues we face.
ISO guidance.

Frontier New Mexico Subdivision. No cell phone service available, landline only. Satellite internet only, w/low limits on bandwidth consumption. Gatherings are limited to 5 or less.

I hold the position of President of the Board. I absolutely want to hold the Annual Meeting ... for the purpose of electing directors! I can see the finish line!!
We've pushed the date back once already. Another 'proper notice' deadline looms ahead. What to do?

An in-person Annual Meeting is ... out.

Teleconferencing/zoom/facetalk/pictok ... whatever .. is not in our realm of experience, nor within our ability to provide. Our bylaws restrict the use of video and phone attendance for this reason.

We have a small website. Some directors can access and utilize the internet and social media for reading and writing; not for videos or movies.

What should we do?

Thanks again!

tammy

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Tammy

How many owners? An in person meeting can work with masking and social distance if not many owners.

AugustinD
Posts: 5,144

Posted:

Hire a company to conduct an online election. Googling will turn up a number of such companies. Cost is a few thousand dollars tops. These companies tend to be expert at reading Bylaws and complying with election rules.

Under no circumstances should people be meeting in a closed room during this pandemic.

I feel like people are in denial about how serious things are. The numbers are exploding. Folks are suffering lifelong disability or dying. And for the capitalists: The economy is tanking because you all are too short-sighted.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By AugustinD on 10/27/2020 10:32 AM
Hire a company to conduct an online election.

By "online election," I mean the company sends out instructions to each Owner with how to vote at a web site. Owners have a few weeks to cast their votes. Voting is accomplished, and you satisfy the intent of your covenants, but not via a real-time, online, dangerous meeting.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Tammy,

Can you post the language from your bylaws that restricts vtc or phone meetings for membership?

Has NM provided any relief to these restrictions?

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Can it be held outside or in an area where masks and chairs 6 feet apart? Not sure how many people you have but what about an outside stadium? Maybe the local High school may let it be "rented" or similar space? Time to think outside of the box.

I had the virus and took me 6 months to recover. Was lucky. So I highly recommend taking steps like hand sanitizer and masks when/if you meet.

Former HOA President

SueW6 (Michigan)
Posts: 814

Posted:

We are having an annual meeting this Sunday. We have pre-printed an absentee ballot and that will be available at the door. People can check it off and then put it in a box and then leave. Our bylaws say that absentee ballots must be presented before the meeting. So the meeting will not start until 1 PM but the doors are open at 12:30 PM for anyone who wants to mark their absentee ballot and then leave. The president will then call the meeting to order. Anyone who wants to stay may stay For the meeting..

Our bylaws say that those in attendance constitutes a quorum ( I know, amazing, isn’t it?)

The president will call out each motion and those in attendance can vote. All of the ballots, including the absentee ballots, will be counted and the results will stand.

This is taking place at a restaurant banquet hall. The hall can hold 250 people. We expect about 25 will arrive and constitute the quorum at the live meeting.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By SueW6 on 10/27/2020 1:47 PM
Our bylaws say that those in attendance constitutes a quorum ( I know, amazing, isn’t it?)

Exemplary, I say. I googled on the phrase "those in attendance constitute a quorum" and a couple hundred hits came up.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Let us remember that regardless of Quorum size, most docs cannot be changed unless a MAJORITY OF ALL OWNERS APPROVE. I have see many posters get confused about this and think it is a Majority of the Quorum versus a Majority or a Majority of Votes versus a Majority of all Owners must approve any change(s).

What I do not like about "those in attendance constitute a Quorum" is when it comes to BOD Elections. Our Quorum requirement is 20% and I would not like to see it any lower.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By JohnC46 on 10/27/2020 2:11 PM
What I do not like about "those in attendance constitute a Quorum" is when it comes to BOD Elections.

Funny, but annual elections is the only time when I would want a "those in attendance, by proxy or in person, constitute a quorum" to be in effect.

For board meetings, I want a quorum requirement to be the majority of the seated directors. The reason is that one does not want one director who shows up for a meeting making all the decisions.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By JohnC46 on 10/27/2020 2:11 PM
... snip ...

What I do not like about "those in attendance constitute a Quorum" is when it comes to BOD Elections. Our Quorum requirement is 20% and I would not like to see it any lower.

Ours is the same, and I also wouldn't want to see it lower. Although I can see the point. Why should a large number of apathetic owners who can't be bothered to attend one meeting a year be allowed to derail the process? On the other hand, such language opens the door for a small group of activities with "creative ideas" to shape the community as they see fit. That's not good either.

There really is no substitute for engaged owners.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By CathyA3 on 10/27/2020 3:07 PM

Activists, not activities. Sheesh...

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By CathyA3 on 10/27/2020 3:07 PM

Ours is the same, and I also wouldn't want to see it lower. Although I can see the point. Why should a large number of apathetic owners who can't be bothered to attend one meeting a year be allowed to derail the process? On the other hand, such language opens the door for a small group of activi[sts] with "creative ideas" to shape the community as they see fit. That's not good either.

With regard to the annual election of directors, and hypothetically with no quorum requirement, yes a small number of people could elect a board that others do not like. But I'd see this more as the non-voters effectively approving what the small number did. All had proper notice, after all. It's the notice, not the quorum, that is critical, IMO.

For other issues where a membership vote is required, I agree that a quorum requirement of say 20% or higher ensures change is hard. Land rights are supposed to be hard to change (say the courts and anyone sensible), so there is some consistency and reliability of expectations.

Though I also keep in mind that the topics on which members have a right to vote are pretty limited. (Despite what like 99% of HOA members think). Typically Declarations authorize the members to vote as needed on the following subjects but nothing else:

-- amending the governing documents (and then as John posted, a certain percentage of all owners must be achieved)

-- terminating the HOA/condo (and again, a certain percentage of all owners must be achieved)

-- whether to sell or buy land

-- opening or closing the common elements

-- approving/disproving the annual budget

-- approving/disproving the annual assessment

-- recalls of directors

TammyC3 (New Mexico)
Posts: 102

Posted:

Hi John,

65 Owners.

New Mexico recently increased restrictions. Groups of 5 or less. 6' distance. Masks everywhere* or $100 fine. 14 day quarantine for visitors from 'high risk' states.
see here: https://www.newmexico.org/covid-19-traveler-information/

Of the 65 owners, only 15 reside in the subdivision. The majority of the remaining owners live in one 'high risk' state (AZ).

TammyC3 (New Mexico)
Posts: 102

Posted:

Hi AugustinD,

Although we are governed by NM's HOA and State Statute, we are a 'landowner' association. A 'rural road maintenance organization'.

Our yearly expected income is less than $6000.00. We are facing hydraulic repairs, yearly road maintenance gravel costs & culvert installation. Again. (should have been completed by the developer)

Our 'election rules'??? lol .. our bylaws are 5 pages long. Disclosure is 30 pages. Covenants are 4 pages. Articles 3 pages. Including definitions and signatures!

Although I believe (worth .10) bylaws might be construed to permit hiring a company, I would really like a 'free' alternative. 65 owners @ $50 per lot yearly only supports the roads.

We have a small (homemade) website. Could we email ballots or make them available for download? Request return via email from 'verified' email address?? Or USPS? Participation could create quorum?

I'm grasping here. Any help is appreciated.

AugustinD
Posts: 5,144

Posted:

Hi TammyC3, because of the pandemic HOAs nationwide are grasping. I think this helps justify your HOA conducting the election in a manner not exactly prescribed by the Bylaws but instead, so as to achieve the election on time and without risking people's safety. I mean, your HOA's choices are only:

(A) conducting the election using a non-Bylaw prescribed manner

(B) not conducting the election

(C) conducting the election per the Bylaws but in violation of state and local pandemic laws and risking people's health and the spread of the virus

I think the choice that results in the least harm and yet conforms with the ultimate purpose of annual elections is (A).

What SueW6's HOA is doing also sounds pretty good, especially the part about dropping off ballots into a box the day of the meeting.

I hear you about the budget. I advise setting up and distributing "Our HOA's Rules for a Pandemic Election." Get the Board's approval to send out a letter like the following:

Dear Membership,

The HOA's Bylaws require an annual election. The Board believes having the annual election is of the utmost importance, of course. But the Board is also aware that the state of necessity due to the pandemic restricts gatherings. For the membership's safety, the Board has decided it has the authority to conduct the annual election by mail-in ballot. Attached please find a list of the candidates and a ballot and a pre-stamped envelope. Please take the time to vote and mail-in the ballot. The Association is also going to email ballots to your email address. You may then print a ballot and submit it by mail or email.

Thank you,

Board of Directors

Start another thread for what should be printed on the ballot.

There is more to this of course but this is the basic idea.

Mostly I want to get across what I believe is the incredibly important duty to continue holding elections even during this pandemic. Arguably getting used to doing business in this fashion is wise. More pandemics may be down the road.

Your HOA wants to meet the required deadlines for notice for a call for candidates; notification of when ballots are due; et cetera. If you cannot meet the deadlines at this point, don't sweat it. Worst case I think a Court is going to accept a defense as follows:

HOA Attorney:
Your Honor, it's true the Board did not follow the Bylaws. But the pandemic laws made this impossible. The Board did the best it could under the circumstances. It got the danged, but super-duper important annual meeting done.

Judge (elected two years ago as a Republican, raises an eyebrow):
'Super-duper' counselor?

HOA Attorney:
It's a colloquialism the late Justice Scalia used on the bench from time to time, your Honor.

This forum is seeing many reports of HOAs/Condos refusing to conduct elections because of the pandemic. AFAIC these HOAs/condos are corrupt.

TammyC3 (New Mexico)
Posts: 102

Posted:

Hi George,

Man, you've got me scratching my head. Did I misspeak?

There is a resolution to the bylaws (not at my fingertips)

1) Can resolution to the bylaws be referred to as "bylaws" or should 'resolution' be stated?

2) Yikes ... you have me questioning 'meeting' ... I wonder ... did the resolution specify 'board meeting'?? Ka - rap!! - Demmit!! It would make sense, since the intent was to stop the shenanigans of Directors who lived out of state and couldn't make it to meetings. The assn would rent a location w/internet, drive miles of bad road to arrive and then the out-of-state directors would not show up via phone to the meeting. (President and Treasurer) Arrrrggg!!

Thanks for that save George! {{still learning the hard way}}

The previous president (for over a decade) did not accept that our Association was governed by the HOA or Corporation Statutes, and was completely unaware of our governing documents. The Association was more of a club. Many actions taken were in violation of the HOA and statute. We attempted to incorporate the 'legal' things by resolution, but disallowing illegal things like paying for repairs, maintenance for un-owned, ungoverned assets really put current directors on the dart board. And the non appearance at meetings was one of the 'results'.

{{grabbing original bylaws from shelf}}

Original bylaws (because there are no meeting notes or references in newsletters about any new bylaws, or any vote, to incorporate any new bylaws.

The 2000 bylaws do not mention phone or electronic means for any meeting. Guess that wasn't on their radar 20 years ago!

HOA Act: Section 12 Member Meetings -
A. "An association shall hold a meeting of the parcel owners annually at a time, date and place stated in or fixed in accordance with the bylaws."

Bylaws: "Annual meetings of members for the election of directors and for other such business ..... shall be held at such places, within the State of NM and at such times and dates as the Board of Directors, by resolution, shall determine."

NM SB 150 Amendment options:

"The Association shall provide for votes to be cast in person. by absentee ballot or by proxy and may provide for voting by some other form of delivery."

Do I see a light??

THANKS again!!

TammyC3 (New Mexico)
Posts: 102

Posted:

Hi MelissaP,

First: Oh my gosh! 6 months. Frightening. I'm happy to hear you recovered and hope that your recovery is at 100%. Wow. Just wow.

~

I agree!! I'm in need of outside the box thinking ... but within the law.

I seriously considered a 'drive in' meeting! Our state restrictions limit a gathering to 5 or less. Masks at all times.

2/3 of our owners live out of state. I'm not comfortable subjecting our community, or the little town that provides the only gas and groceries for 60 miles, to any risk.

Another reply had me looking up verbiage, and I posted in another reply (George?). Wondering if there is a way to bend around the vague language.

Love to hear your thoughts.

AugustinD
Posts: 5,144

Posted:

For what it is worth --

Quote:

Posted By TammyC3 on 10/28/2020 9:08 AM

1) Can resolution to the bylaws be referred to as "bylaws" or should 'resolution' be stated?

-- The only Board "resolutions" that have any legal validity are those that either the Declaration or Bylaws expressly authorize.

Many boards make the mistake of "approving" resolutions that have no legal validity and that, when implemented, are de facto unlawful amendments to the governing documents.

-- Good job finding NMSA Section 47-16-9 (a part of the NM HOA Act). It states:

================
47-16-9. Proxy and absentee voting; ballot counting.
A. The association shall provide for votes to be cast in person, by absentee ballot or by proxy and may provide for voting by some other form of delivery.

B. Vote by proxy is allowed for lot owner meetings. The proxy vote shall:

(1) be dated and executed by a lot owner, but if a lot is owned by more than one person, each owner of the lot may vote or register protest to the casting of votes by the other owners of the lot through a duly executed proxy, but in no case shall the total vote cast be more than that allocated to the lot under the declaration;

(2) allow for revocation if notice of revocation is provided to the person presiding over a lot owner meeting; and

(3) be valid only for the meeting at which it is cast.

C. If proxy voting is utilized at a lot owner meeting, a person shall not pay a company or person to collect proxy votes.

D. Where directors or officers are to be elected by members, the bylaws may provide that such elections may be conducted by mail.

E. Votes cast by proxy and by absentee ballot are valid for the purpose of establishing a quorum.

F. Ballots, if used, shall be counted by a neutral third party or by a committee of volunteers. The volunteers shall be selected or appointed at an open meeting, in a fair manner, by the chair of the board or another person presiding during that portion of the meeting. The volunteers shall not be board members and, in the case of a contested election for a board position, shall not be candidates.

G. Nothing in this section shall be considered in conflict with or a replacement of voting member councils or representative voting systems created by the community documents.
===========================

The following may also be relevant:
======================
47-16-15. Applicability.
A. Except as provided in Subsection B of this section, the Homeowner Association Act shall apply to all homeowner associations created and existing within this state.

B. Sections 47-16-9, 47-16-10 and 47-16-14 NMSA 1978 do not apply to homeowner associations created before July 1, 2013 and that have fewer than thirty lots; provided that any amendment to the community documents of an association created before July 1, 2013 shall comply with the Homeowner Association Act.

C. The Homeowner Association Act does not apply to a condominium governed by the Condominium Act [47-7A-1 to 47-7D-20 NMSA 1978].
==========================

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By TammyC3 on 10/28/2020 9:28 AM
I seriously considered a 'drive in' meeting!

You go, girl.

) I could get behind this. Show a movie afterwards

TammyC3 (New Mexico)
Posts: 102

Posted:

And there you have it!! I couldn't agree more.

I cannot begin to express the quantity of relief I am feeling.

GeorgeS sent me spiraling into the docs and statutes .... the audacity!

2000 Bylaws don't address electronic-anything meetings. They do provide that the "annual meeting shall be held at such places, .... as the Board of Directors, by resolution, shall determine."

New Mexico SB 150, Section 4, Proxy and absentee voting - ballot counting:
A: "The association shall provide for votes to be cast in person, by absentee ballot, or by proxy and may provide for voting by some other form of delivery."
F: "Ballots, if used, shall be counted by a neutral third party or by a committee of volunteers ... *rules* ... ".

"Other form of delivery". This is intriguing. - Your thoughts?

lol @ me, reading" "pre-stamped envelope". Ohhhhhhh so sorry: Me: "Can't they download the ballot and send it back ... using their own stamp?? - - I can resolve to bite this bullet ... but arg! The struggle is real!

Every director wants to hold the election. Paperwork is due to the Secretary of State. The Secretary asked about extension due to prevailing circumstances. The state replied there are no 'exemptions' ? 'exceptions'?.

I will seek approval from Directors for letter to: Members Re: HOA rules for a pandemic election, today.

Is a resolution: 'LOA's rules for a pandemic election' in order?

I'll begin a new thread about ballots as soon as all Directors are up to speed to this point.

Thanks so much!

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By TammyC3 on 10/28/2020 10:35 AM

GeorgeS sent me spiraling into the docs and statutes .... the audacity!

lol . I see a beautiful mind (yours) out there in the Land of Enchantment.

IMO Mr. GeorgeS21 often provides (welcome) focus here.

Quote:

Posted By TammyC3 on 10/28/2020 10:35 AM
2000 Bylaws don't address electronic-anything meetings. They do provide that the "annual meeting shall be held at such places, .... as the Board of Directors, by resolution, shall determine."

[From the NM HOA Statute:]
4, Proxy and absentee voting - ballot counting:
A: "The association shall provide for votes to be cast in person, by absentee ballot, or by proxy and may provide for voting by some other form of delivery."
F: "Ballots, if used, shall be counted by a neutral third party or by a committee of volunteers ... *rules* ... ".

"Other form of delivery". This is intriguing. - Your thoughts?

Sure. Allowed are: Drive-in voting. Voting on the internet. Voting by sending in ballots by email, probably using whatever electronic signature authority New Mexico statutes provide; more. Just make sure the method of voting is likely to be bulletproof if challenged in a lawsuit. If the HOA members make reasonable requests re voting, consider implementing them. This should help minimize dissension subsequently.

Yes, make the Owners use their own stamp. Your budget is small. Road repairs are beckoning. Winter has arrived out that way, doing more damage to roads.

Of course, keeping all HOA members happy is impossible. This is why I think any politician has a hard time. Do the best you can to follow the governing documents and law. That's all the courts and competent HOA attorneys expect.

By the way, I believe "SB 150" refers to "Senate Bill 150". This would be a draft of the HOA Act or its amendments before they were actually passed into law by both Houses. After they are passed into law, you should refer to the statute as "the NM HOA Act" or "the NM HOA statute.

The passages I quoted and you seem to be quoting are from the actual law (a statute) and not a bill under consideration by the NM legislature.

Quote:

Posted By TammyC3 on 10/28/2020 10:35 AM
Every director wants to hold the election.

Oh my lord, cast a mold and clone each of these directors and ship 'em off to Florida, Maryland, New York and Texas, where boards are not being so wise.

Quote:

Posted By TammyC3 on 10/28/2020 10:35 AM
Paperwork is due to the Secretary of State. The Secretary asked about extension due to prevailing circumstances. The state replied there are no 'exemptions' ? 'exceptions'?.

Huh. Fascinating. It sounds to me like the Secretary of State is way with it. He/she is right: There are no doggone exemptions to having an election. It has to be held, and even with the pandemic, in a reasonable time period.

Extensions, of a reasonable time, should be allowed while HOAs due the massive (seriously) extra labor of ensuring safe voting et cetera.

Quote:

Posted By TammyC3 on 10/28/2020 10:35 AM
Is a resolution: 'LOA's rules for a pandemic election' in order?

FWIW: Just this one time, I am applying Augie's not-so-coveted stamp of approval to a resolution that goes outside the governing documents, on account of the pandemic. This is because nationwide, law firms are giving their own, way-coveted stamps of approval to such actions on account of the pandemic.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By AugustinD on 10/28/2020 11:00 AM
Just this one time, I am applying Augie's not-so-coveted stamp of approval to a resolution that goes outside the governing documents, on account of the pandemic. This is because nationwide, law firms are giving their own, way-coveted stamps of approval to such actions on account of the pandemic.

Granted, since it appears the NM HOA Statute overrides earlier recorded covenants on this issue, the resolution should cite the NM HOA Act. The resolution maybe should start with words like, "Pursuant to the NM HOA Act, Section... "

KellyM3 (North Carolina)
Posts: 2,239

Posted:

I would attempt to retrieve as many proxies as possible to reach quorum. I'd dial back the agenda to the bare minimum and call an outdoor meeting.

Use the proxies to ratify your budget, etc and adjourn as soon as practical.

TammyC3 (New Mexico)
Posts: 102

Posted:

Thank you for kudos on finding statute. Finding is one thing. Comprehending and applying correctly ... that is the struggle! So thankful for this forum.

I'm feeling fairly confident regarding proxy voting. Thankfully, our Secretary has experience and proved invaluable at the last election. lol, when there are two position open and only two candidates ... we can't go to far astra.!

I'm once again reeling - "expressly authorize" ... (gee. thanks)

Comprehending:
Disclosure states: Community Water: N/A

Covenants: "Purpose of Assessment Fee" - The annual assessment fee levied by the Association of $50 per lot, is used exclusively to promote the health, safety, and welfare of the owners of the lots.

I would deduce that bylaws cannot be written to incorporate a 'community well' as part of our expense obligation. A community well is not 'expressly authorized' and a resolution to change that would be unenforceable.

Am I close to the target?

Would you give an example (or 2) of a resolution eliminating something that is not 'expressly authorized'? i.e. If proxy votes & in person voting are permitted in bylaws, does this meet 'expressed' .. and allow for a resolution using state statute to restrict voting to in person only? (asking for a friend!!)
If not, could an 'amendment' be the vehicle? Or a complete (sorely needed) up to date set of the bylaws?

Our association was created before 2013, and we have more than 30 lots. How does this break down for us?

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By TammyC3 on 10/28/2020 11:37 AM
I'm feeling fairly confident regarding proxy voting. Thankfully, our Secretary has experience and proved invaluable at the last election. lol, when there are two position open and only two candidates ... we can't go to far astra[y]!

Yes, this is good news. It gives your Board a chance to work out the bugs of how you want to do elections without worrying too much about mistakes for this election.

Quote:

Posted By TammyC3 on 10/28/2020 11:37 AM
I'm once again reeling - "expressly authorize" ... (gee. thanks)

[With a twinkle in my eye] Don't mention it. ;)

I brought up the legality of certain Board "resolutions" because I have been researching this as I help a HOA Owner with a lawsuit. The Owner is likely going to bring this up in the next six months with the court through motion or at trial. I believe it's going to play a huge role. His HOA's Bylaws and Declaration expressly authorize board resolutions in six, very specific areas. His argument will be that the resolution the Board created, concerning xyz and with huge implications dollar-wise, is unlawful, because the resolution has no authority in the governing documents. No authority as in zip, nada, zilch, go scr-w yourselves Board of Directors. Nationwide, the courts enforce board-invented rules and regulations all the time, as long as they are reasonable. But resolutions? Only if they have authority residing in the governing documents do Board resolutions have legal force. So says Augie, and I have seen no court say otherwise. The courts want Boards to follow the governing docs.

You know what I think most Board resolutions are for? Flexing muscle unlawfully. Owners have no clue how they are trod upon by ignorant Boards claiming their friggin' resolution has the force of law (when it does not).

This brings us to your excellent question:

Quote:

Posted By TammyC3 on 10/28/2020 11:37 AM

Covenants: "Purpose of Assessment Fee" - The annual assessment fee levied by the Association of $50 per lot, is used exclusively to promote the health, safety, and welfare of the owners of the lots.

I would deduce that bylaws cannot be written to incorporate a 'community well' as part of our expense obligation. A community well is not 'expressly authorized' and a resolution to change that would be unenforceable.

Correct. What your HOA would need to do is amend its bylaws and/or Declaration. Proper recording with the county would then have to follow.

Quote:

Posted By TammyC3 on 10/28/2020 11:37 AM

Would you give an example (or 2) of a resolution eliminating something that is not 'expressly authorized'?

Do a keyword search for "resolution" of your Bylaws and Declaration. Post here any sentences that use the word "resolution."

Quote:

Posted By TammyC3 on 10/28/2020 11:37 AM
i.e. If proxy votes & in person voting are permitted in bylaws, does this meet 'expressed' .. and allow for a resolution using state statute to restrict voting to in person only? (asking for a friend!!)
If not, could an 'amendment' be the vehicle? Or a complete (sorely needed) up to date set of the bylaws?

I am not sure I understand.

What is most important to remember is that the NM HOA statute overrides your Bylaws procedures for voting to a large extent. Statute trumps bylaws, unless the statute says otherwise.

What I am saying is that, even though your Bylaws say nothing about a Board resolution to modify voting procedures, the NM HOA statute does say a lot about how voting is done. Your HOA can wing it some, just for the sake of getting down in writing for all Owners to see, and create a board resolution that satisfies the requirements of the HOA statute. The point is for this resolution to get all Owners on the same page, with the same understanding of what is expected of them when it comes to voting. This will be some protection in the event of a legal challenge.

Such is my recommendation.

Quote:

Posted By TammyC3 on 10/28/2020 11:37 AM

Our association was created before 2013, and we have more than 30 lots. How does this break down for us?

The NM HOA statute does apply to your HOA, by my reading.

AugustinD
Posts: 5,144

Posted:

Tammi, you might note that the NM HOA Act states the following in its definitions section:
====
G. "community documents" means all documents governing the use of the lots and the creation and operation of the association, including the declaration, bylaws, articles of incorporation and rules of the association;
====

"Resolutions" are neither the declaration, the bylaws, the articles of inc, nor the rules.

If a board wants to regulate xyz, then as long as there is authority to regulate xyz in either the declaration, bylaws, or the articles of inc, then the board can create a rule to do so, and publish it alongside other board-created rules.

But a resolution is a whole different animal in the world of government, including in HOAs.

Folks need to know where to go to find out how they are governed. They go to the declaration, the bylaws, the articles of inc, the rules and regulations, and maybe resolutions expressly authorized by either the declaration or bylaws.

Articles of inc are unlikely to speak of board resolutions. The Articles of Inc have legal value but tend to be pretty general.

TammyC3 (New Mexico)
Posts: 102

Posted:

Hi CathyA,

Directors have discussed quorum requirements at great length. It's comforting to hear our sentiments and frustrations are recognized by our peers.

TammyC3 (New Mexico)
Posts: 102

Posted:

Reading. Rereading. Rereading. And rereading.

If I never have to look up something in our community documents again, it will be too soon!! One would think I could have them memorized by now.

Directors encourage the election because they want off of the ride!! The proper course has been set, compliance achieved, revenue increased, expenses decreases. Terms expire. Nominations won't be accepted. (lol, they can't force us to stay ... can they??!!) I hope that Members are anxious to put new directors on the board. Especially those who steered the Association into treacherous territory. Time for the armchair directors to step up to the plate.

I can't wait to "keyword search" for 'resolution'. < (it took me longer than it should have to realize what that meant!). Good grief ... what if it doesn't appear?? (gee. thanks) {{grin}}

It's a lot to digest.

I'm going to sleep on it. Right after I've taken a minute to gaze at the Milky Way.
"Land of Enchantment" is an understatement, but it's as good as mere words will allow.

Tomorrow ....

AugustinD
Posts: 5,144

Posted:

Tammi, if your governing documents say the Board may write (reasonable) rules and regulations, perhaps a section of your rules and regulations addressing the "Rules and Regs" for elections would be the better way to go, instead of a resolution that, as I posted, technically lacks legal authority.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By KellyM3 on 10/28/2020 11:14 AM
I would attempt to retrieve as many proxies as possible to reach quorum. I'd dial back the agenda to the bare minimum and call an outdoor meeting.

Use the proxies to ratify your budget, etc and adjourn as soon as practical.

I agree.

AnnS12 (Wisconsin)
Posts: 67

Posted:

have you looked into nearby parks with a shelter.

That way you're outside and should be able to spread out. Require everyone to wear masks.
You should be able to rent one for around $100.00.

TammyC3 (New Mexico)
Posts: 102

Posted:

Hi AnnS,

I really like this idea. I'll bet we could find a place for no charge. My concern is the 14 day quarantine in place for visitors from 'high risk' states. The majority of non-resident owners live in a 'high risk' state.

Mask or no mask, I'm hesitant to be the one who 'invites' them to our county. We have 10 confirmed cases. I find it compelling that the number doubled to 10 after the last holiday, when every 'recreational' owner from out of state came to visit an area with no law enforcement presence. They thought it was a holiday from their state's rules, and acted as if our state had no rules. (not just our subdivision)

There has to be another way ...

TammyC3 (New Mexico)
Posts: 102

Posted:

AugustinD,

I'm still failing @ the available 'quote' option, apologies ...

Per request: Do a keyword search for "resolution" of your Bylaws and Declaration. Post here any sentences that use the word "resolution."

Resolution appears 4 times in our Bylaws -

1) Meeting of Members - ....Annual meetings of members for the election of directors and for such other business as may be stated in the notice of the meeting, or as may properly come before the meeting, shall be held at such places, within the State of New Mexico, and at such times and dates as the Board of Directors, by resolution, shall determine as set forth in the notice of meeting.

2) Enumeration of Officers: The officers of this Association shall be a President, Secretary and Treasurer plus other officers as the Board may from time to time by resolution create.

3) President: The President shall preside at all meetings of the Board of Directors, shall see that orders and resolutions of the Board are carried out, shall sign all approved leases, mortgages, deeds and other written instruments and perform such other duties as may be required by the Board.

4) Treasurer: The Treasurer shall receive and deposit in appropriate bank accounts all monies of the Association and shall disburse such funds as directed by resolution of the board of Directors, keep proper books of account and shall perform other duties as may be required by the Board.

Covenants:

ZERO times

~

Should I understand: Where "resolution" is stated, is the only place a resolution can be utilized?
Permission must be granted specifically and prior?

AugustinD
Posts: 5,144

Posted:

Hi Tammi,

By my reading, the only resolutions that your Board can approve that will have legal force are those resolutions that (1) set dates and times of the annual meeting; (2) create other officers (e.g. assistant treasurer, assistant secretary, liaison to members, yada); (3) direct the disbursement of funds.

Back to the main question, about how to make the annual meeting happen safely and pursuant to the law and covenants:

Do either your Bylaws or your Declaration authorize the Board to create reasonable rules and regulations to implement the Bylaws or Declaration? The latter is common nationwide. If so, a set of "Election Rules," created by the Board and pursuant to pandemic law, the NM HOA Act, the NM Nonprofit Corporation Act, and your Bylaws may be the best route to go by far.

Again, the point is to get all Owners on the same page with regard to this year's election (and maybe future elections when there is a pandemic).

I wouldn't labor too long over this. As far as I am concerned, HOA/Condo Boards should do the best they can, especially if time is short, to make the annual meeting happen on time. I know it is extra work and boards and managers will worry about all the what ifs. But as long as the Board is doing the best it can and the meeting and election are held under reasonable conditions, I think the Board and HOA will be fine.

I am not sure what you mean by "permission must be granted specifically and prior." Can you re-phrase this?

GeorgeS21 (Florida)
Posts: 3,808

Posted:

I'm with Augustin on this.

Boards sometimes spend a lot of time trying to make everyone happy, meet any and every requirement from governing docs and statute, etc.

Sometimes, given circumstances, decisions are forced one way or the other - BUT, there should always be solid rationale, that is openly noted and shared as to WHY the Board decided and what it means.

I believe - in most cases during this pandemic, that a Board having an online meeting, or a physically distanced meeting in a different location, etc is reasonable.

TammyC3 (New Mexico)
Posts: 102

Posted:

Augustin,

Our Declaration & Bylaws are vague fill-in-the-blank documents. I've listed the verbiage below.

At this juncture, I'm willing to encourage a commitment by the Board to move forward on conducting the Annual Meeting using our website and making ballots available for download.

All we can do is all we can do. I don't think Members could find fault. If they are unhappy with the Board's decisions, they should volunteer or nominate someone else and elect them!! No time like the present! (This brings up (new thread) issue: Out of state Directors directing and completing road maintenance responsibilities.)

Once other Directors are in agreement, and Members are advised of intent, I will begin a new forum thread re: Ballots

~

Declaration states:

"The Developer shall establish a New Mexico, not for profit corporation, named XXXXX (hereafter called "Association") charged with the duties and vested with the powers described by law and set forth in the Articles of Incorporation, the Bylaws for the Association, and this Declaration."

"Interpretation of Restrictions. The Board Member of the Association shall have the exclusive right to construe and interpret these restrictions, and their decisions shall be final, conclusive and binding upon all persons and the Property."

~

"permission must be granted specifically and prior"

Specifically = The bylaws specifically note "resolution" in a specific 'clause'* Article?

Prior = Resolution(s) opportunities are (already/prior) granted in bylaws - One can't make them up as they go along or, as you state, they will NOT have legal force.
Your reply drove it home.

Thank you!

TammyC3 (New Mexico)
Posts: 102

Posted:

Solid rationale, openly noted, stating "why".

Agreed.

Thank you!

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By TammyC3 on 11/02/2020 4:11 AM
"Interpretation of Restrictions. The Board Member of the Association shall have the exclusive right to construe and interpret these restrictions, and their decisions shall be final, conclusive and binding upon all persons and the Property."

For the archives, phrasing like the above is common nationwide in covenants/bylaws. I think Boards typically read much too much into the phrase. From my reading, the phrase has next-to-no value. Where covenants or Bylaws give the Board discretion, on account of say, vagueness, the use of the word "may," or similar, the courts nationwide say that exercise of this discretion must be "reasonable." I think this tends to keep boards, that consult a competent HOA attorney, from doing something totally off-the-wall and, say, tramping on certain 'free enjoyment of land' et cetera rights. Generally speaking, from my reading the latter rights belong to Owners when the covenants/bylaws are either silent or too ambiguous to apply fairly and reasonably. When a board does something that some would say is reasonable and others would say is not reasonable, then often times the two conflicting parties land in court. Understandably, appeals court decisions seem particularly replete with this category of HOA dispute.

🎯 You've read this entire discussion

Join the conversation with 50,000 HOA & Condo Leaders:

✓ Ask follow-up questions
✓ Share your experience
✓ Get expert advice
✓ Access 350,000 discussions

Create Free Account →

⚡ Takes 30 seconds

Already a member? Log in here