NO Quorum for 3rd Reconvened Annual Meeting for Elections in TX

CindyB10 (Texas)
Posts: 11

Posted:

We just had our Annual Meeting in which we were to have elections. Per the Annual Meeting Notice, the first meeting was opened, quorum not met, the meeting was closed. A second meeting was opened, quorum NOT met again and the meeting was closed. Here's where my question comes in..... Our CAM, which was present, said that in this circumstance we could open for a third time for elections only but could not conduct any business. I, as Secretary, and our Interim President both agreed with our CAM we both "thought" we could do it, BUT WE WERE NOT SURE. CAM reassured us as long as we had 10% (and we did) that would give us quorum and we could proceed to the third meeting. So we did. Members present asked questions about each Nominee and the floor was opened to Floor Nominations.

I have researched all of Texas Property Code and Texas Business Code and cannot find anything for this circumstance. I have since found the Sterling Davis rule, but I cannot find where Texas has adopted it.

ARE WE LEGAL? IF NOT, WHAT SHOULD I DO?

Our Articles of Incorporation and Bylaws direct us to our DCCR's which say:
Quorum and Notice Requirements.
(a) Except as expressly set forth herein to the contrary, any action of the Members shall require the consent of a majority of all of the votes of the Members (regardless of class) who are voting in person or by proxy at a meeting duly called for that purpose, written notice of which shall be given to all Members not less than thirty (30) days, nor more than sixty (60) days in advance, and shall set forth the purpose of such meeting.
(b) The quorum required for any action referred to in paragraph (a) of this section shall be as follows:
At the first meeting called, the presence at the meeting of Members, or of proxies of non-present Members, entitled to cast a majority of all of the votes of Members (regardless of class) shall constitute a quorum. If the required quorum is not present at the meeting, one additional meeting may be called, subject to the notice requirement hereinabove set forth, and the required quorum at such second meeting shall be one-half (1/2) of the required quorum at the preceding meeting; provided, however, that no such second meeting shall be held more than sixty (60) days following the first meeting.

KerryL1 (California)
Posts: 14,550

Posted:

You're in luck as there are some very knowledgeable TX posters here!

Meanwhile, the Davis-Stirling legislation is only for CA.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By CindyB10 on 04/13/2021 1:48 PM
We just had our Annual Meeting in which we were to have elections. Per the Annual Meeting Notice, the first meeting was opened, quorum not met, the meeting was closed. A second meeting was opened, quorum NOT met again and the meeting was closed. Here's where my question comes in..... Our CAM, which was present, said that in this circumstance we could open for a third time for elections only but could not conduct any business. I, as Secretary, and our Interim President both agreed with our CAM we both "thought" we could do it, BUT WE WERE NOT SURE. CAM reassured us as long as we had 10% (and we did) that would give us quorum and we could proceed to the third meeting. So we did. Members present asked questions about each Nominee and the floor was opened to Floor Nominations.

I have researched all of Texas Property Code and Texas Business Code and cannot find anything for this circumstance. I have since found the Sterling Davis rule, but I cannot find where Texas has adopted it.

ARE WE LEGAL? IF NOT, WHAT SHOULD I DO?

Our Articles of Incorporation and Bylaws direct us to our DCCR's which say:
Quorum and Notice Requirements.
(a) Except as expressly set forth herein to the contrary, any action of the Members shall require the consent of a majority of all of the votes of the Members (regardless of class) who are voting in person or by proxy at a meeting duly called for that purpose, written notice of which shall be given to all Members not less than thirty (30) days, nor more than sixty (60) days in advance, and shall set forth the purpose of such meeting.
(b) The quorum required for any action referred to in paragraph (a) of this section shall be as follows:
At the first meeting called, the presence at the meeting of Members, or of proxies of non-present Members, entitled to cast a majority of all of the votes of Members (regardless of class) shall constitute a quorum. If the required quorum is not present at the meeting, one additional meeting may be called, subject to the notice requirement hereinabove set forth, and the required quorum at such second meeting shall be one-half (1/2) of the required quorum at the preceding meeting; provided, however, that no such second meeting shall be held more than sixty (60) days following the first meeting.

Cindy

I say you could go on and on with meetings as long as each is held within 60 days of the last meeting and with a 30 day notice for each meeting. With each meeting the Quorum requirement is 1/2 of the original Quorum. 40%, 20%, 10%, 5%, etc.

In one HOA we had to go to the 3rd meeting before we had a Quorum.

MaxB4
Posts: 3,513

Posted:

Quote:

Posted By JohnC46 on 04/13/2021 2:40 PM

Posted By CindyB10 on 04/13/2021 1:48 PM
We just had our Annual Meeting in which we were to have elections. Per the Annual Meeting Notice, the first meeting was opened, quorum not met, the meeting was closed. A second meeting was opened, quorum NOT met again and the meeting was closed. Here's where my question comes in..... Our CAM, which was present, said that in this circumstance we could open for a third time for elections only but could not conduct any business. I, as Secretary, and our Interim President both agreed with our CAM we both "thought" we could do it, BUT WE WERE NOT SURE. CAM reassured us as long as we had 10% (and we did) that would give us quorum and we could proceed to the third meeting. So we did. Members present asked questions about each Nominee and the floor was opened to Floor Nominations.

I have researched all of Texas Property Code and Texas Business Code and cannot find anything for this circumstance. I have since found the Sterling Davis rule, but I cannot find where Texas has adopted it.

ARE WE LEGAL? IF NOT, WHAT SHOULD I DO?

Our Articles of Incorporation and Bylaws direct us to our DCCR's which say:
Quorum and Notice Requirements.
(a) Except as expressly set forth herein to the contrary, any action of the Members shall require the consent of a majority of all of the votes of the Members (regardless of class) who are voting in person or by proxy at a meeting duly called for that purpose, written notice of which shall be given to all Members not less than thirty (30) days, nor more than sixty (60) days in advance, and shall set forth the purpose of such meeting.
(b) The quorum required for any action referred to in paragraph (a) of this section shall be as follows:
At the first meeting called, the presence at the meeting of Members, or of proxies of non-present Members, entitled to cast a majority of all of the votes of Members (regardless of class) shall constitute a quorum. If the required quorum is not present at the meeting, one additional meeting may be called, subject to the notice requirement hereinabove set forth, and the required quorum at such second meeting shall be one-half (1/2) of the required quorum at the preceding meeting; provided, however, that no such second meeting shall be held more than sixty (60) days following the first meeting.

The required quorum doesn't get cut in half for each subsequent meeting. It would be a one time cut.

Cindy

I say you could go on and on with meetings as long as each is held within 60 days of the last meeting and with a 30 day notice for each meeting. With each meeting the Quorum requirement is 1/2 of the original Quorum. 40%, 20%, 10%, 5%, etc.

In one HOA we had to go to the 3rd meeting before we had a Quorum.

CindyB10 (Texas)
Posts: 11

Posted:

Go on and on even if our DCCR's specifically say "If the required quorum is not present at the meeting, one additional meeting may be called"? It says specifically the first meeting and one additional meeting, nothing about any other subsequent meetings. I'm not trying to split hairs, I just want to be compliant.

CindyB10 (Texas)
Posts: 11

Posted:

MaxB4 can you give reference where I can validate that and present to the outgoing and incoming Board as well as our CAM? I'm already labeled and am constantly having to "prove" myself.

MaxB4
Posts: 3,513

Posted:

If you can only have one other meeting, who determines if the meeting is to be held? The wording says, may be called, not shall be called.

CindyB10 (Texas)
Posts: 11

Posted:

Also, JohnC4 we started off at majority (51%) and the second meeting 1/2 of that (26%) and then the third meeting went to 10%. The third meeting wasn't half of the second. Also, our Notice only said if the first meeting didn't make quorum we would reconvene for a second meeting to make quorum.........nothing mentioned in our Notice OR Agenda about a 3rd called meeting.

MaxB4
Posts: 3,513

Posted:

Quote:

Posted By CindyB10 on 04/13/2021 5:27 PM
MaxB4 can you give reference where I can validate that and present to the outgoing and incoming Board as well as our CAM? I'm already labeled and am constantly having to "prove" myself.

Your documents state one other meeting which has to be at least 30 days out, but not longer than 60 days. Being this is a members meeting, it would be those members present who determine whether a second meeting will be held. The presiding officer should make the motion, but a member could make the motion as long as it is seconded. If no motion or no second, issue is dead and there would be no second meeting.

Say you have 100 members and quorum is a majority or 51 members. 27 ballots and/or proxies were returned. You don't have quorum for that meeting, but you have sufficient numbers in the event a second meeting is properly called for.

CindyB10 (Texas)
Posts: 11

Posted:

Since the Board determines all meeting dates, times and locations then the Board would in this instance as well. We have never made quorum the first time. The Board unanimously voted and approved to have a second meeting following the first one based upon history.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By CindyB10 on 04/13/2021 5:24 PM
Go on and on even if our DCCR's specifically say "If the required quorum is not present at the meeting, one additional meeting may be called"? It says specifically the first meeting and one additional meeting, nothing about any other subsequent meetings. I'm not trying to split hairs, I just want to be compliant.

This got my attention as well.

Is this a condominium? If so, on what date was it established?

What fraction of the members were present at the second meeting? The wording in the first post is confusing to me.

I checked the two Texas condo acts (one pre-1994; one after 1994, generally); the Texas HOA yada Act; and the Texas nonprofit corporation act. By my reading, what controls, at this point in time, is what CindyB10 quoted in her first post. In my opinion no more meetings are to be held for the purpose of completing the annual election.

If after two meeting attempts (without the required quorum of first 50+% and then 25+% as stated in the first post), there are vacancies on the board, then the HOA/condo should fill those vacancies as directed in the Bylaws and state law.

MaxB4
Posts: 3,513

Posted:

Quote:

Posted By CindyB10 on 04/13/2021 5:40 PM
Since the Board determines all meeting dates, times and locations then the Board would in this instance as well. We have never made quorum the first time. The Board unanimously voted and approved to have a second meeting following the first one based upon history.

As this is a member meeting, NOT a board meeting, proper protocol dictates that the members make the decision on whether to proceed to a second meeting.

CindyB10 (Texas)
Posts: 11

Posted:

AugustinD Not a condo, Single family HOA. Certificate of Formation/Articles of Incorporation was filed in 2013. Developer turned over in 2016.

MaxB4 30 days out, but not longer than 60 days is for Notice.

For quorum it says: If the required quorum is not present at the meeting, one additional meeting may be called, subject to the notice requirement hereinabove set forth, and the required quorum at such second meeting shall be one-half (1/2) of the required quorum at the preceding meeting; provided, however, that no such second meeting shall be held more than sixty (60) days following the first meeting.

The second meeting was within 60 days and the second meeting was "noticed" the second would follow the first meeting.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By CindyB10 on 04/13/2021 5:27 PM
MaxB4 can you give reference where I can validate that and present to the outgoing and incoming Board as well as our CAM? I'm already labeled and am constantly having to "prove" myself.

-- Generally speaking, you are correct that it is best to follow the law and HOA's governing documents. But there's a huge caveat to the latter, as given below.

-- If you do not have a majority on the board who will do as you suggest regarding being compliant with the law, then your 'battle' becomes a political one. Many here will advise going along to get along. The only problem with that is then your HOA's directors are just making up stuff as they go along, without the backing of Thee Law. On the third hand, if this majority does not care about the law, then you are likely going to spin your wheels a lot on this board, and as you are experiencing, the other directors may shun you on a regular basis. Come to hoatalk to vent, but do not expect you will be able to change their point of view.

-- You are getting conflicting answers from different posters here. I am sorry they are not uniformly turning first to what the law says. Some at this forum throw the law out the window on a routine basis. Because it's too much trouble to be compliant with the law. Another result of this is that this thread will not be helpful to others down the road, except to impress upon them that HOA boards often just do what seems reasonable to them, without considering what the law says.

-- You ought to state how many board seats were up for election. You ought to answer every question every poster here asks you.

BarbaraT1 (Texas)
Posts: 821

Posted:

Quote:

Posted By CindyB10 on 04/13/2021 1:48 PM
We just had our Annual Meeting in which we were to have elections. Per the Annual Meeting Notice, the first meeting was opened, quorum not met, the meeting was closed. A second meeting was opened, quorum NOT met again and the meeting was closed. Here's where my question comes in..... Our CAM, which was present, said that in this circumstance we could open for a third time for elections only but could not conduct any business. I, as Secretary, and our Interim President both agreed with our CAM we both "thought" we could do it, BUT WE WERE NOT SURE. CAM reassured us as long as we had 10% (and we did) that would give us quorum and we could proceed to the third meeting. So we did. Members present asked questions about each Nominee and the floor was opened to Floor Nominations.

I have researched all of Texas Property Code and Texas Business Code and cannot find anything for this circumstance. I have since found the Sterling Davis rule, but I cannot find where Texas has adopted it.

ARE WE LEGAL? IF NOT, WHAT SHOULD I DO?

Our Articles of Incorporation and Bylaws direct us to our DCCR's which say:
Quorum and Notice Requirements.
(a) Except as expressly set forth herein to the contrary, any action of the Members shall require the consent of a majority of all of the votes of the Members (regardless of class) who are voting in person or by proxy at a meeting duly called for that purpose, written notice of which shall be given to all Members not less than thirty (30) days, nor more than sixty (60) days in advance, and shall set forth the purpose of such meeting.
(b) The quorum required for any action referred to in paragraph (a) of this section shall be as follows:
At the first meeting called, the presence at the meeting of Members, or of proxies of non-present Members, entitled to cast a majority of all of the votes of Members (regardless of class) shall constitute a quorum. If the required quorum is not present at the meeting, one additional meeting may be called, subject to the notice requirement hereinabove set forth, and the required quorum at such second meeting shall be one-half (1/2) of the required quorum at the preceding meeting; provided, however, that no such second meeting shall be held more than sixty (60) days following the first meeting.

Your CAM probably said that because the Texas property code allows a board of directors to amend the bylaws to reduce quorum to 10% for election purposes only (regardless of the amendment requirements in the bylaws). But you should have done this before the meeting.

Were the second and third meetings included in the original notice? I.e. the meeting will be called to order at 7pm, if quorum is not met the recall meeting will be called to order at 7:15 etc. ?

Were any of the seats contested? Were new board members elected or existing ones re-elected?

You need to clean this up, but how to do so depends on what happened during the election.

CindyB10 (Texas)
Posts: 11

Posted:

MaxB4 - I don't even know anymore, honestly. Nothing has been followed since 2013 (under Developer control to present). We received a letter, Proxy, Ballot and bio's submitted by Nominees. I continued to question wording of every document prepared by our CAM but the other Board Members thought I was stalling so I could continue on the Board. The interim president booked a location and directed the CAM on a date without me even knowing until it was within our time limits...........I've reached out to our attorney and the response was, "let's have a zoom meeting with the outgoing and incoming Board to iron this out". Can you all see I am confused and I need guidance.

The letter says:
Re: The XXXX Homeowners Association, Inc. Annual Meeting

Dear Homeowner, The XXXXX Homeowners Association, Inc. will hold its 2021 Annual Homeowners Meeting on
XXXXX, 2021 from 6:00 PM - 8:00 PM. Additionally, an Annual Reonvene Meeting of the XXXX Homeowners Association, Inc. Will take place immediately following if need. Sign in will begin at 6:00 PM. The event will be held at: XXXXXXX

The Board of Directors has called this meeting to review the 2019 and 2020 year-end financials, year-to-date
financials, 2021 Budget, discuss the operational activities of your association, and elect new board members.

Proxy says:
REVOCABLE PROXY FOR
THE XXXX HOMEOWNERS ASSOCIATION
A TEXAS NON-PROFIT CORPORATION acknowledges receipt of the
Notice of Meeting to elect Members of the Board of Directors. The meeting will be held on:

Ballot says:
ABSENTEE BALLOT
2021 Annual Meeting

BarbaraT1 (Texas)
Posts: 821

Posted:

If the third meeting wasn’t on the notice, it wasn’t properly noticed and I would say it wasn’t a valid meeting.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By BarbaraT1 on 04/13/2021 6:29 PM
Your CAM probably said that because the Texas property code allows a board of directors to amend the bylaws to reduce quorum to 10% for election purposes only (regardless of the amendment requirements in the bylaws).

Got a citation for this?

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By CindyB10 on 04/13/2021 6:31 PM
I continued to question wording of every document prepared by our CAM but the other Board Members thought I was stalling so I could continue on the Board. The interim president booked a location and directed the CAM on a date without me even knowing until it was within our time limits...........I've reached out to our attorney and the response was, "let's have a zoom meeting with the outgoing and incoming Board to iron this out". Can you all see I am confused and I need guidance.

The Board is more likely to listen to the attorney than you. If possible, have the board agree to a zoom meeting with the attorney.

Also, unless the Board gave you permission to contact the attorney, you should not be doing so.

I suspect all the directors on this board need guidance. This does not mean they will accept said guidance. Welcome to Alice's Wonderland.

BarbaraT1 (Texas)
Posts: 821

Posted:

Quote:

Posted By AugustinD on 04/13/2021 6:44 PM

Posted By BarbaraT1 on 04/13/2021 6:29 PM
Your CAM probably said that because the Texas property code allows a board of directors to amend the bylaws to reduce quorum to 10% for election purposes only (regardless of the amendment requirements in the bylaws).

Got a citation for this?

Google Texas property code 209 and read it.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By BarbaraT1 on 04/13/2021 6:53 PM

Posted By AugustinD on 04/13/2021 6:44 PM

Posted By BarbaraT1 on 04/13/2021 6:29 PM
Your CAM probably said that because the Texas property code allows a board of directors to amend the bylaws to reduce quorum to 10% for election purposes only (regardless of the amendment requirements in the bylaws).

Got a citation for this?

Google Texas property code 209 and read it.

Before submitting my query above, I searched Texas Property Code Ch. 209 at https://statutes.capitol.texas.gov/Docs/PR/htm/PR.209.htm . So far, I do not see what you claim there.

MaxB4
Posts: 3,513

Posted:

Generally, Boards under declarant control can amend governing docs without membership approval, and I believe Cindy stated they are still under developer control.

MaxB4
Posts: 3,513

Posted:

Quote:

Posted By AugustinD on 04/13/2021 7:02 PM

Posted By BarbaraT1 on 04/13/2021 6:53 PM

Posted By AugustinD on 04/13/2021 6:44 PM

Posted By BarbaraT1 on 04/13/2021 6:29 PM
Your CAM probably said that because the Texas property code allows a board of directors to amend the bylaws to reduce quorum to 10% for election purposes only (regardless of the amendment requirements in the bylaws).

Got a citation for this?

Google Texas property code 209 and read it.

Before submitting my query above, I searched Texas Property Code Ch. 209 at https://statutes.capitol.texas.gov/Docs/PR/htm/PR.209.htm . So far, I do not see what you claim there.

b) The board of a property owners' association may amend the bylaws of the property owners' association to provide for elections to be held as required by Subsection (a).

AugustinD
Posts: 3,698

Posted:

Quoting part of Sec. 209.00593:

Quote:

Posted By MaxB4 on 04/13/2021 7:03 PM
b) The board of a property owners' association may amend the bylaws of the property owners' association to provide for elections to be held as required by Subsection (a).

Yup. Saw that. Subsection (a) does not say what BarbaraT1 claims. Nor does Subsection (a) speak to quorum requirements.

BarbaraT1 (Texas)
Posts: 821

Posted:

Quote:

Posted By AugustinD on 04/13/2021 7:02 PM

Posted By BarbaraT1 on 04/13/2021 6:53 PM

Posted By AugustinD on 04/13/2021 6:44 PM

Posted By BarbaraT1 on 04/13/2021 6:29 PM
Your CAM probably said that because the Texas property code allows a board of directors to amend the bylaws to reduce quorum to 10% for election purposes only (regardless of the amendment requirements in the bylaws).

Got a citation for this?

Google Texas property code 209 and read it.

Before submitting my query above, I searched Texas Property Code Ch. 209 at https://statutes.capitol.texas.gov/Docs/PR/htm/PR.209.htm . So far, I do not see what you claim there.

209.00593 (a) and (b).

I’ve worked with multiple attorneys in Texas to help multiple associations lower quorum to enable elections but I guess I’ll have to tell them Augustin from the Internet knows everything about HOAs everywhere and all the lawyers are wrong.

BarbaraT1 (Texas)
Posts: 821

Posted:

Quote:

Posted By AugustinD on 04/13/2021 7:08 PM
Quoting part of Sec. 209.00593:

Posted By MaxB4 on 04/13/2021 7:03 PM
b) The board of a property owners' association may amend the bylaws of the property owners' association to provide for elections to be held as required by Subsection (a).

Yup. Saw that. Subsection (a) does not say what BarbaraT1 claims. Nor does Subsection (a) speak to quorum requirements.

Clearly you know more than anyone about HOA law in every state.

Nobody answer questions anymore folks - Augustin is the sole authority!

MaxB4
Posts: 3,513

Posted:

Quote:

Posted By BarbaraT1 on 04/13/2021 7:10 PM

Posted By AugustinD on 04/13/2021 7:08 PM
Quoting part of Sec. 209.00593:

Posted By MaxB4 on 04/13/2021 7:03 PM
b) The board of a property owners' association may amend the bylaws of the property owners' association to provide for elections to be held as required by Subsection (a).

Yup. Saw that. Subsection (a) does not say what BarbaraT1 claims. Nor does Subsection (a) speak to quorum requirements.

Clearly you know more than anyone about HOA law in every state.

Nobody answer questions anymore folks - Augustin is the sole authority!

Couldn't agree more!

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By BarbaraT1 on 04/13/2021 7:09 PM

209.00593 (a) and (b).

I see nothing in 209.00593 that, to quote you, "allows a board of directors to amend the bylaws to reduce quorum to 10% for election purposes only (regardless of the amendment requirements in the bylaws)."

We disagree.

=== Cut and Paste from Aforementioned Texas Property Code ===
Sec. 209.00593. ELECTION OF BOARD MEMBERS. (a) Notwithstanding any provision in a dedicatory instrument, any board member whose term has expired must be elected by owners who are members of the property owners' association. A board member may be appointed by the board to fill a vacancy on the board. A board member appointed to fill a vacant position shall serve for the remainder of the unexpired term of the position.

(a-1) At least 10 days before the date a property owners' association composed of more than 100 lots disseminates absentee ballots or other ballots to association members for purposes of voting in a board member election, the association must provide notice to the association members soliciting candidates interested in running for a position on the board. The notice must contain instructions for an eligible candidate to notify the association of the candidate's request to be placed on the ballot and the deadline to submit the candidate's request. The deadline may not be earlier than the 10th day after the date the association provides the notice required by this subsection.

(a-2) The notice required by Subsection (a-1) must be:

(1) mailed to each owner; or

(2) provided by:

(A) posting the notice in a conspicuous manner reasonably designed to provide notice to association members:

(i) in a place located on the association's common property or, with the property owner's consent, on other conspicuously located privately owned property within the subdivision; or

(ii) on any Internet website maintained by the association or other Internet media; and

(B) sending the notice by e-mail to each owner who has registered an e-mail address with the association.

(a-3) An association described by Subsection (a-1) shall include on each absentee ballot or other ballot for a board member election the name of each eligible candidate from whom the association received a request to be placed on the ballot in accordance with this section.

(b) The board of a property owners' association may amend the bylaws of the property owners' association to provide for elections to be held as required by Subsection (a).

MaxB4
Posts: 3,513

Posted:

The way I read it is that Board may amend the Bylaws to conduct elections. Quorum is part of the election process and thus one of the many areas that might make changes.

CindyB10 (Texas)
Posts: 11

Posted:

BarbaraT1 -Bylaws have not been Amended. Second meeting was included, not the third in the notice. 5 vacancies, 3 nominations before the meeting, 1 floor nomination accepted. Floor nomination was the only returning Board member. Four out of five positions filled.

CindyB10 (Texas)
Posts: 11

Posted:

AugustinD -Your first three points are spot on. I do want to be lawful and am trying to be......yes this is a hard path.

5 positions up for election, 3 nominations came in prior to the meeting, 1 floor nomination accepted by previous interim president. Total of four positions filled out of the 5 we can have (but not required to have).

I'm trying to keep up with the questions and answer them all.

MaxB4
Posts: 3,513

Posted:

Cindy

I would trust Barbara based on her experience as a manager in the state of Texas. Based on what she said and reviewing Texas Property Act, Board can amend Bylaws as it relates to elections. Someone is looking for specifics while another has opinions from attorneys in Texas.

That being said, if you are still under developer control, the developer will rule until homeowner turnover. Unless there are amended Bylaws, I believe the CAM is wrong and I third meeting could not be authorized. Can't just wing it. Well you can until you're called out.

Curious, how many ballots/proxies are required and how many did you receive?

CindyB10 (Texas)
Posts: 11

Posted:

AugustinD Help is desperately needed. I get so frustrated. My contact with the attorney was/is during transition and was given permission until transition was complete after all loose ends were tied up. I contacted attorney to advise that I was no longer on the Board (and another member too) and provided all newly elected names and contact information. Attorney responded to me asking me to coordinate the zoom meeting for outgoing and incoming as part of transition. I sent the email to everyone, attorney asked for an update on zoom meeting. I advised attorney I let everyone know and no one had responded and may not since I question the validity of the election. His response was we would work it out in the zoom meeting. I've had no further contact.

CindyB10 (Texas)
Posts: 11

Posted:

MaxB4 -Developer turned over in 2016. We are fully HOA Board controlled. No Bylaw Amendments that has been presented. I have asked CAM 3 times now for verification we are legal. NO RESPONSE.....again frustrating. I mean if we're good, I'm thrilled to have my life back. If not, I'm stuck on the Board still and of course another stone cast my way. For the first meeting we needed 195 and then we needed 97 for the second meeting. 41 were present and 6 proxies sent in- 47 total for quorum purposes

MaxB4
Posts: 3,513

Posted:

And this is why I am against quorum requirements for the election of directors.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By AugustinD on 04/13/2021 7:19 PM

=== Cut and Paste from Aforementioned Texas Property Code ===
Sec. 209.00593. ELECTION OF BOARD MEMBERS. (a) Notwithstanding any provision in a dedicatory instrument, any board member whose term has expired must be elected by owners who are members of the property owners' association.[snippage]

I have changed my mind. I believe the first sentence in the Texas Property Code Ch. 209, section 209.00593 (a) (see right above) is the powerful one here. CindyB10's term has expired. Section 209.00593's "Notwithstanding" means, 'in spite of what is in the DCCRs.' I figure that this means that what CindyB10 quoted in her first post from the DCCRs, about two attempts to meet quorum for a meeting of the association members, for election purposes, is to be disregarded when it comes to the number of attempts made to run an election.

CindyB10 serves until an election by owners has happened. The reason she serves until this election happens is because of the Texas non-profit corporation act Section 22.208:
===
Sec. 22.208. TERM OF OFFICE. (a) Unless the director resigns or is removed, a director on the initial board of directors of a corporation holds office until the first annual election of directors or for the period specified in the certificate of formation or bylaws of the corporation. Directors other than the initial directors are elected, appointed, or designated for the terms provided by the certificate of formation or bylaws.

(b) In the absence of a provision in the certificate of formation or bylaws setting the term of office for directors, a director holds office until the next annual election of directors and until a successor is elected, appointed, or designated and qualified.
===

I think Texas HOA Act, Chapter 209 has nothing germane (in these circumstances) on what the quorum should be subsequently to run an election. But the Texas nonprofit corporation act at Sec. 22.159 does have language concerning quorum as follows: Sec. 22.159 "(a) Unless otherwise provided by the certificate of formation or bylaws of a corporation, members of the corporation holding one-tenth of the votes entitled to be cast, in person or by proxy, constitute a quorum." See https://statutes.capitol.texas.gov/Docs/BO/htm/BO.22.htm

I think a reasonable interpretation of this is that the Board should go ahead and run a third election and, if a 10% quorum (pursuant to the nonprofit corporation act section 22.159) is attained, then the outcome of this election is binding.

I think this is an appropriate, lawful way to resolve what could be said to be somewhat vague instructions and/or conflicts in the two statutes (the Texas HOA statute and Texas nonprofit corporation statute) and CindyB10's DCCRs.

(As far as I am concerned, figuring out what happens if the third attempt does not achieve a 10% quorum should wait until this actually happens.)

MaxB4
Posts: 3,513

Posted:

1) Texas Non-Profit would not apply as the association already has provisions for quorum.
2) While the board had the authority to reduce quorum requirement, they chose not to do so per Cindy, at least, not legally.

Therefore, they are entitled to two meetings but not a third.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By MaxB4 on 04/14/2021 10:21 AM
1) Texas Non-Profit would not apply as the association already has provisions for quorum.

My take is that the Texas HOA Act Section 209.00593 says to disregard the DCCRs (the "notwithstanding" sentence) so as to run an election et cetera, per my post above.

Quote:

Posted By MaxB4 on 04/14/2021 10:21 AM
2) While the board had the authority to reduce quorum requirement, they chose not to do so per Cindy, at least, not legally.

I do not think the Board has decided how to proceed. To me, it appears the law requires the Board to attempt another election, with a 10% quorum requirement.

Hopefully the Board will meet with the attorney and get some kind of direction. It sounds like little may be getting done while this dispute lingers.

MaxB4
Posts: 3,513

Posted:

So, based on your statement, the new requirement for quorum in the great state of Texas has now been reduced to 10%.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By MaxB4 on 04/14/2021 11:03 AM
So, based on your statement, the new requirement for quorum in the great state of Texas has now been reduced to 10%.

Please quote where I claimed this.

Under the circumstances the OP presents, and based on my reading of the two statutes and the DCCRs, a third election with a quorum requirement of 10% seems to me to be the best choice to comply with the law.

MaxB4
Posts: 3,513

Posted:

This is Cindy docs.

Our Articles of Incorporation and Bylaws direct us to our DCCR's which say:
Quorum and Notice Requirements.
(a) Except as expressly set forth herein to the contrary, any action of the Members shall require the consent of a majority of all of the votes of the Members (regardless of class) who are voting in person or by proxy at a meeting duly called for that purpose, written notice of which shall be given to all Members not less than thirty (30) days, nor more than sixty (60) days in advance, and shall set forth the purpose of such meeting.
(b) The quorum required for any action referred to in paragraph (a) of this section shall be as follows:
At the first meeting called, the presence at the meeting of Members, or of proxies of non-present Members, entitled to cast a majority of all of the votes of Members (regardless of class) shall constitute a quorum. If the required quorum is not present at the meeting, one additional meeting may be called, subject to the notice requirement hereinabove set forth, and the required quorum at such second meeting shall be one-half (1/2) of the required quorum at the preceding meeting; provided, however, that no such second meeting shall be held more than sixty (60) days following the first meeting.

You posted : I think Texas HOA Act, Chapter 209 has nothing germane (in these circumstances) on what the quorum should be subsequently to run an election. But the Texas nonprofit corporation act at Sec. 22.159 does have language concerning quorum as follows: Sec. 22.159 "(a) Unless otherwise provided by the certificate of formation or bylaws of a corporation, members of the corporation holding one-tenth of the votes entitled to be cast, in person or by proxy, constitute a quorum."

Since the OP has quorum requirement, corporation code does not apply. The Board would be within there rights to lower quorum to 10% by legally amending their Bylaws or Articles. According to the OP, they didn't. Or are you saying they don't need to follow the law as long as they try to make quorum, thus, the new rule for Texas is now 10%.

AugustinD
Posts: 3,698

Posted:

See my discussion of Texas Property Code Section Sec. 209.00593 (a). ELECTION OF BOARD MEMBERS. The first sentence of this section starts with, "Notwithstanding any provision in a dedicatory instrument... " This means that, for this section's purposes, the DCCRs are disregarded.

I made no blanket statement that the quorum requirement throughout Texas is 10%.

MaxB4
Posts: 3,513

Posted:

This is what it says and what it means:

Sec. 209.00593. ELECTION OF BOARD MEMBERS. (a) Notwithstanding any provision in a dedicatory instrument, any board member whose term has expired must be elected by owners who are members of the property owners' association. A board member may be appointed by the board to fill a vacancy on the board. A board member appointed to fill a vacant position shall serve for the remainder of the unexpired term of the position.

It states that regardless of what the docs says, the election of board members whose term have expired MUST be elected by the property owners. Notwithstanding applies to Sec 209.00593(a) only, nothing else.

I conduct election services for HOA's I am not under contract with, so I have to understand the language in state codes and governing docs. I have also had the discussion with HOA attorneys on how "notwithstanding" is used. It applies only to the section, in this instance 209.00593(a) only. It would apply to others parts of the section is so inserted at the beginning of the paragraph.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By MaxB4 on 04/14/2021 12:03 PM
This is what it says and what it means:

Sec. 209.00593. ELECTION OF BOARD MEMBERS. (a) Notwithstanding any provision in a dedicatory instrument, any board member whose term has expired must be elected by owners who are members of the property owners' association. A board member may be appointed by the board to fill a vacancy on the board. A board member appointed to fill a vacant position shall serve for the remainder of the unexpired term of the position.

It states that regardless of what the docs says, the election of board members whose term have expired MUST be elected by the property owners. Notwithstanding applies to Sec 209.00593(a) only, nothing else.

I agree about when the notwithstanding applies. But for me, then the question becomes: When does Sec 209.00593 apply? Sec 209.00593 applies when "any board member whose term has expired must be elected by owners who are members of the property owners' association." Cindy's term expired. If she wants to continue, she has to win the 'next election.'

I think appeals to authority are dumb. I could give a flying fig about your experience, and I will not defer to your opinion simply because you say I ought to. If I think a poster is right in her or his reasoning, during a discussion, I will say so. You know darn well that, in the past, I have validated your position when I thought your position was correct.

We are not going to agree on this one.

MaxB4
Posts: 3,513

Posted:

So apparently, experience, whether it was mine or Barbara doesn't matter. In this instance, if you're going tp recite something, you have to know how to interpret the language. Here you said the board could change quorum even though it clearly states it only applies to who can elect board board members whom term have expired. That language is poor because most likely the term had not expired when they submitted their nomination papers. Maybe the language should have been "set to expire".

What happens to all these Boards in Texas who didn't have an election or postponed theirs because of the pandemic. Are they no longer a Board member because their terms have expired. If not, then Cindy should still remain until the next election. If she is no longer a Board member as you state, the Board can't appoint a replacement only the owners can through an election. If she resign, then yes, they can appoint a replacement.

If the OP is stating they are not sure and can't get an answer from the CAM after three times, how is the OP right in their reasoning? You could just have a CAM going along to get along. The interpretation is very easy to follow

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By MaxB4 on 04/14/2021 12:59 PM
[junk redacted] Here you said the board could change quorum even though it clearly states it only applies to who can elect board board members whom term have expired.

I do not know what you are trying to say.

My posts above speak for themselves.

Quote:

Posted By MaxB4 on 04/14/2021 12:59 PM
That language is poor because most likely the term had not expired when they submitted their nomination papers. Maybe the language should have been "set to expire".

We might agree on this point.

Quote:

Posted By MaxB4 on 04/14/2021 12:59 PM

What happens to all these Boards in Texas who didn't have an election or postponed theirs because of the pandemic. Are they no longer a Board member because their terms have expired.

The legalities are unclear for the pandemic. I am not going to waste time going off on a tangent.

Quote:

Posted By MaxB4 on 04/14/2021 12:59 PM
If the OP is stating they are not sure and can't get an answer from the CAM after three times, how is the OP right in their reasoning?

First, that's not what she said, second, I never said the OP is right in their reasoning. I do not know why you think I should just automatically accept an anonymous poster's (your) claims, especially when you repeatedly demonstrate you are not reading carefully. You're being a twit.

The CAM's suggestion appears to me to be the legally best one. In my opinion the CAM's suggestion, along with the steps taken to date, will satisfy the sequence et cetera that the two statutes and the DCCRs require.

MaxB4
Posts: 3,513

Posted:

Under the circumstances the OP presents, and based on my reading of the two statutes and the DCCRs, a third election with a quorum requirement of 10% seems to me to be the best choice to comply with the law.

If I think a poster is right in her or his reasoning, during a discussion, I will say so. You know darn well that, in the past, I have validated your position when I thought your position was correct.

I believe that speaks for itself.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By MaxB4 on 04/14/2021 1:21 PM
Under the circumstances the OP presents, and based on my reading of the two statutes and the DCCRs, a third election with a quorum requirement of 10% seems to me to be the best choice to comply with the law.

If I think a poster is right in her or his reasoning, during a discussion, I will say so. You know darn well that, in the past, I have validated your position when I thought your position was correct.

I believe that speaks for itself.

Correct. Nowhere did I say the OP's reasoning is correct.

Maybe you do not understand the meaning of "circumstances." Maybe you are PUI-ing.

MaxB4
Posts: 3,513

Posted:

From you: The CAM's suggestion appears to me to be the legally best one. In my opinion the CAM's suggestion, along with the steps taken to date, will satisfy the sequence et cetera that the two statutes and the DCCRs required.

From the OP:MaxB4 -Developer turned over in 2016. We are fully HOA Board controlled. No Bylaw Amendments that has been presented. I have asked CAM 3 times now for verification we are legal. NO RESPONSE.....again frustrating. I mean if we're good, I'm thrilled to have my life back. If not, I'm stuck on the Board still and of course another stone cast my way. For the first meeting we needed 195 and then we needed 97 for the second meeting. 41 were present and 6 proxies sent in- 47 total for quorum purposes

That sounds like a CAM that can back up their claims!

AugustinD
Posts: 3,698

Posted:

Oooh, a gotcha.

Whatever, about the three times. It does not go to the substance of the thread, which is 'What is the best approach legally to the situation?'