Voting

Need your help - again.
We have a couple of attorneys that have polar opposite views of a statement in our by-laws concerning voting.
The statement is as follows;
Section 8. Voting. Each Member shall be entitled to one vote. Owners of property owned jointly or in concert with others, or by a partnership, trust or corporation, shall be treated as a single Member and shall designate one person to vote on behalf of such owners. No member who is delinquent in the payment of dues shall be entitled to exercise the right to vote.

One attorney states that this is simply "one member, one vote". The other attorney states that if a member has more than one lot and has paid their assessments, they have a vote for each lot owned.

We have a very small community (46 property owners) and it is rumored that the voting statement in the by-laws was written this way to ensure one or two members would not be able to "run the show".

We would greatly appreciate your thoughts here as we have a membership meeting coming up soon and this will certainly be discussed.

Thank you

The bylaws do not have a definition for "member".

There are no other statements concerning voting in any of our documents.

I believe it is O.C.G.A. §44-5-60

The attorney that stated "one member, one vote" said the same thing you have said, unusual, but that's what it says.

I have all of our POA documentation and the only mention of voting is this statement in our bylaws.

I forgot to mention that I'm actually the president of our POA (and looking forward to handing it off in 2024!)

Member is clearly defined: “Owners of property owned jointly or in concert with others, or by a partnership, trust or corporation, shall be treated as a single Member.”

Therefore, every property is, in essence, one member. Which means every property gets one vote.

So, if a group of people own one property they jointly get one vote (for example, if 2 people own one property – like a married couple – they collectively only get 1 vote).

Or, if one person owns 2 properties, he or she gets one vote per property (they get 2 votes).

Think of a “member” as the same thing as "property." Every “member” (or “property”) gets one vote, regardless of how many people own the property.

I do have the "Articles of Incorporation".

The POA was established in 1997.

I would hope the attorneys read over everything but can't guarantee it.

I think ElleN's correct to want more info.

But I agree with Terri that: Each lot has a Owner. Each owner, whether a corporation, a couple 2 families, etc., is a Member. One member, one vote. How could a lot that is owned not have a vote? How is it possible a person/owner would pay assessments on that property and not have a vote and be a Member?

But Terri, where does your citation come from?

Often, CC&Rs (covenants, declaration, deed restriction) have definitions at the front. Perhaps "member" is among them. I would also check to see if there's a definition of "separate interest" lot. Since you have bylaws you are incorporated, so I'd check the corporation statutes in Georgia re: member; membership.

I think the "rumor" is just wishful thinking.

The bylaw does not say this.

We have nothing that states how assessment are computed. Just that they will be collected for road maintenance and such.
A quorum is stated at 25%
Amendments can be made to the bylaws but no mention of amendments in our covenants (at this time)

Statement for members -
CCR's
14. Lot owners in the subdivision, by acceptance of a deed or by entering into a contract for the purchase of a lot in the subdivision shall become members of the XXXXX.

Articles of Incorporation
III. The corporation shall have members, who will consist of property owners of subdivided lots in XXXXX.

Bylaws
There are 58 times that members, or membership, are mentioned in the bylaws but no defining statements.

With the nonprofit corporation statute, the above seals it for me. My reasoning follows.

When conflicts between the various governing documents occur, or when there seem to be ambiguities, the courts abide by the following hierarchy of documents:

State law
CC&Rs
Articles of Incorporation
Bylaws

State law says the CC&Rs and Articles determine who is a "member." From the CC&Rs and Articles, all lot owners are members. What the bylaws seem to say about what a member is, or is not, does not matter. The CC&Rs and Articles control on this point. Now to determine who gets to vote, we look to the bylaws. From reading the bylaws and state law (perhaps in particular Georgia POA Act section 44-3-224), in my opinion a court would conclude each member gets one vote, except when a lot is owned by more than one person. When a lot is owned by more than one person, the lot gets assigned only one vote, regardless of how many members own the lot. The co-owners of the lot designate who will do the voting. Reading all this any other way results in logical absurdities (like how to compute quorum or what number of votes are needed to amend). The courts read contracts so as to avoid internal, logical absurdities.

With all due respect, I believe the last line should be: Therefore all dogs are animals. Good try!

Usually, it's one vote per UNIT, so if you owned more than one, you'd have one vote for each unit. However, your section says one MEMBER so I take that to mean one vote, regardless of how many units you own, making me a member of Team Other Attorney.

It's hard to say what the developer intended when this was written - he/she/they probably didn't read it very closely because most HOA documents are written from a template, then cutting and pasting the name and address of the community. That said, I like the idea of one vote per member because these days, it's easy for an owner with money (the investor-owners) to buy up enough units to control the association and therefore do all sorts of things - good and terrible. In my community, we have at least one owner who owns over 10 units (I live in a townhouse community), but at the moment, they aren't causing too many problems.

How to fix this? Someone who owns more than one unit may have to go to court to see how a judge would rule, but a better approach would be to discuss the issue at the homeowner's meeting and consider amending the documents to make it more clear. Amending documents require more homeowner approval, so start reading the rest of your documents for details. In the meantime, I'd opt for one member per unit - people who own more than one can make an argument for making it one vote per unit (they can also explain how to prevent the domination the attorney spoke of.)

I'm going to show my ignorance here. I've read over the above #44-3-224 a couple of times. Not quite sure I understand it.

What's the exact wording for "quorum"? E.g. does it say, quorum shall be:

25% of the total eligible votes?

25% of the members?

25% of the lot owners?

25% of the property owners?

Something else?

Same for the amendments section. Does it take X% of the total eligible votes? X% of the members? And so on.

Section 11. Quorum. Except as otherwise provided in the Bylaws, the presence in person or by proxy of Members representing at least twenty-five (25%) percent of the total vote of the Association shall constitute a quorum at all meeting of the Association.

Section 10. Majority. As used by these Bylaws, the term “majority” shall mean those votes, owners, or other group as the contract may indicate totaling more than fifty (50%) percent of the total number voting.

So it is one vote per property. Just like I said.

And everyone else that participated in this discussion - Thank you!

Did I say that? I can't find it. My understanding is that whoever's name is on title is a member but only one vote per parcel up to two parcels, unless the parcel is owned by a trust, corporation, etc., in which case the trustee(s) appoints a member.

Excuse me, Terri--I misquoted you.