Petition Validity

SusanS9 (California)
Posts: 56

Posted:

If 20 homeowners are required (5% of association) to sign petition to remove the board, the signatures are obtained, verified and a special meeting is scheduled to vote on the issue, is the petition invalidated if one or two homeowners decide to withdraw their signatures from the petition such that the number of signatures fall below the required 5%?

GeraldT4
Posts: 1,022

Posted:

I have not encountered a provision in a governing document that deals with this issue. Perhaps your governing documents do? Seems to me that their change of heart should not prevent or invalidate the meeting from occurring since it was duly called. However, just because the meeting was called does not mean the vote to remove will pass, especially since two are now against.

DanielH1 (California)
Posts: 482

Posted:

Somebody asked this before and the general consensus was: the meeting is still held.

RichardP13 (California)
Posts: 1,767

Posted:

Susan

I ran into this for a Special Meeting I put together for this past Monday. The signatures are valid once the petition has been turned in and homeownership and signatures are verified. If you needed 20, then I am guessing your community consists of 400 units. We have 317 homes and need 16, but I got 24 to be on the safe side.

Our meeting failed for a couple of reason, one it was called for on a holiday, two the board didn't put the meeting on their web calendar, but more importantly, I was denied access to a Board/Management "approved" Proxy by the Management company to get quorum by going door to door.

The two that want to remove their signature is not issue. You need a quorum for the meeting to actually be official. The petition is only the first step. So if you do have 400 units and your docs say you need a majority of the voting members, meaning 201, to be present in person or by proxy.

Good Luck

GlenL (Ohio)
Posts: 5,491

Posted:

Quote:

Posted By RichardP13 on 01/20/2010 1:32 PM
Susan

I ran into this for a Special Meeting I put together for this past Monday. The signatures are valid once the petition has been turned in and homeownership and signatures are verified. If you needed 20, then I am guessing your community consists of 400 units. We have 317 homes and need 16, but I got 24 to be on the safe side.

Our meeting failed for a couple of reason, one it was called for on a holiday, two the board didn't put the meeting on their web calendar, but more importantly, I was denied access to a Board/Management "approved" Proxy by the Management company to get quorum by going door to door.

The two that want to remove their signature is not issue. You need a quorum for the meeting to actually be official. The petition is only the first step. So if you do have 400 units and your docs say you need a majority of the voting members, meaning 201, to be present in person or by proxy.

Good Luck

With apologies to Susan and others for hijacking her post to respond to Richard but I’ve held my keyboard for a while now but I have to respond to his latest post as to how his HOA is deliberately out to thwart him.

Richard, you always have an excuse as to why others are at fault. Ignoring the fact that if you really wanted to be on the BOD you and your supporters did a really lousy job of getting out the vote for the first failed meeting. Then that mean old lawyer wouldn’t let you have the reduced quorum meeting where you were prepared to go out and do what you should have done in the first place. And you spent post after post complaining she didn’t have the right to do so and you had X number of attorney’s and HOA professionals who agreed with you despite the contents of the letter the attorney wrote you: (edited for space – not content. These are two complete paragraphs.)

With regard to your question concerning adjournment of the annual meeting, I would like to correct some misinformation in your question. Your question reads as follows: “If by-laws of an HOA allow for the members to vote to adjourn to a new meeting if quorum for an annual meeting and election is not meet [sic], can an attorney disallowed [sic] that vote of the members.” The misinformation in your question is that I did not “allow” the Association to vote to adjourn the meeting to a later date. At the meeting, I informed the Association that each secret ballot received by the inspectors of election counts as a “member present.” Article 5, Section 5.4 of the Association’s Bylaws requires that a majority of the “member present” vote to adjourn a meeting. This requires that the owners who have cast their votes by secret ballot and who are considered, by their secret ballots, to be “present” at the meeting to participate in the vote to adjourn. It was not possible for these owners “present” by secret ballot to vote to adjourn the meeting. The unnamed attorney’s response to your question regarding adjournment of the annual meeting is incorrect inasmuch as it does not even acknowledge that secret ballot voting is required to elect directors. If you would like to retain this attorney as your legal council, I would be happy to explain the interplay between the secret ballot law and the Association’s Bylaws to him or her.

With regard to the Association conducting Board meetings in executive session, the Association is aware of the law allowing for only certain issues to be discussed in executive session. The Board meeting held on Monday, November 30, 2009, was held in executive session because of your threats of litigation against the Association. The Board may discuss matters relating to “litigation” in executive session and chose to discuss the adjournment of the annual meeting and proceeding to make amendments to the Association’s Bylaws in executive session because those issues relate to the potential litigation you threatened.

Now the reason the special meeting failed was again the Board’s fault, no doubt part of a grand conspiracy against you. In none of your posts do I remember you complaining that the SM was set for MLK day or that the HOA wouldn’t provide you with an approved proxy. In fact nowhere in the following sections of your By-Laws as posted on your website require the proxy to be an HOA approved proxy only that it contain certain elements. (bold by me)

Section 5.10 Proxies. Every person entitled to vote or execute consents shall have the right to do so either in person or by a written proxy executed by such person and filed with the Secretary of the Association. All proxies shall be revocable and shall automatically terminate upon transfer of title of a Unit by the Owner.

Section 5.11 Ballots. Any form of proxy or written ballot distributed by any person to the membership of the Association shall afford the opportunity to specify a choice between approval and disapproval of each matter or group of matters to be acted upon. It shall not be mandatory that a candidate for election to the Board be named in the proxy or written ballot. The proxy or written ballot shall provide that, where the Member specifies a choice, the vote shall be cast in accordance with that choice. The proxy shall also identify the person who is authorized to exercise the proxy and the length of time it will be valid.

I’ll agree that the meeting should not have been set on MLK day but as long as the Association posted proper notices for the event they did in fact do their part; besides in another post you complained about the quality of the HOA website and how they hadn’t changed its content since it went online well before the SM was scheduled. So what did you expect?

Since you’re covered by Davis-Stirling and it requires that that no other business be transacted at a SM other than what is on the agenda nothing could have been done other than talking about changing the quorum requirement anyway. From your website, bold/underline by me:

The petition read as follows:

The undersigned members representing 5% or more of the membership of the association hereby petition that the (i) board of directors set the earliest reasonable date, time and place for a special meeting for the purpose of discussing the reduction or elimination of the quorum requirement for the annual meeting and election of board members contained in Section 5.7 of Article 5 of the By-Laws of the Mountain Glen II Condominium Association, and in addition, reducing or eliminating the required voting percentage to change or update the By-Laws of the Mountain Glen II Homeowners Association and (ii) that notice be sent by the board to the membership as provided for in Section 7511(a) of the Corporations Code.

Studies show that 5 out of 4 people have problems with fractions

RichardP13 (California)
Posts: 1,767

Posted:

Glen

Unless you know exactly what is going on and have been present at our meeting, I would respectfully ask that you do not comment at all. The governing docs and the law mean nothing to these people. Who gave you the keys to the pearly gates?

RichardP13 (California)
Posts: 1,767

Posted:

Glen,

I do know the law and I do know our governing doc, but since you are so knowledgeable, maybe you should discuss the law with my BoD and see what response you get from them. Their email address is on my website.

Have fun!!

FredN (California)
Posts: 87

Posted:

Quote:

Posted By GlenL on 01/20/2010 6:19 PM

Posted By RichardP13 on 01/20/2010 1:32 PM
Susan

I ran into this for a Special Meeting I put together for this past Monday. The signatures are valid once the petition has been turned in and homeownership and signatures are verified. If you needed 20, then I am guessing your community consists of 400 units. We have 317 homes and need 16, but I got 24 to be on the safe side.

Our meeting failed for a couple of reason, one it was called for on a holiday, two the board didn't put the meeting on their web calendar, but more importantly, I was denied access to a Board/Management "approved" Proxy by the Management company to get quorum by going door to door.

The two that want to remove their signature is not issue. You need a quorum for the meeting to actually be official. The petition is only the first step. So if you do have 400 units and your docs say you need a majority of the voting members, meaning 201, to be present in person or by proxy.

Good Luck

With apologies to Susan and others for hijacking her post to respond to Richard but I’ve held my keyboard for a while now but I have to respond to his latest post as to how his HOA is deliberately out to thwart him.

Richard, you always have an excuse as to why others are at fault. Ignoring the fact that if you really wanted to be on the BOD you and your supporters did a really lousy job of getting out the vote for the first failed meeting. Then that mean old lawyer wouldn’t let you have the reduced quorum meeting where you were prepared to go out and do what you should have done in the first place. And you spent post after post complaining she didn’t have the right to do so and you had X number of attorney’s and HOA professionals who agreed with you despite the contents of the letter the attorney wrote you: (edited for space – not content. These are two complete paragraphs.)

With regard to your question concerning adjournment of the annual meeting, I would like to correct some misinformation in your question. Your question reads as follows: “If by-laws of an HOA allow for the members to vote to adjourn to a new meeting if quorum for an annual meeting and election is not meet [sic], can an attorney disallowed [sic] that vote of the members.” The misinformation in your question is that I did not “allow” the Association to vote to adjourn the meeting to a later date. At the meeting, I informed the Association that each secret ballot received by the inspectors of election counts as a “member present.” Article 5, Section 5.4 of the Association’s Bylaws requires that a majority of the “member present” vote to adjourn a meeting. This requires that the owners who have cast their votes by secret ballot and who are considered, by their secret ballots, to be “present” at the meeting to participate in the vote to adjourn. It was not possible for these owners “present” by secret ballot to vote to adjourn the meeting. The unnamed attorney’s response to your question regarding adjournment of the annual meeting is incorrect inasmuch as it does not even acknowledge that secret ballot voting is required to elect directors. If you would like to retain this attorney as your legal council, I would be happy to explain the interplay between the secret ballot law and the Association’s Bylaws to him or her.

With regard to the Association conducting Board meetings in executive session, the Association is aware of the law allowing for only certain issues to be discussed in executive session. The Board meeting held on Monday, November 30, 2009, was held in executive session because of your threats of litigation against the Association. The Board may discuss matters relating to “litigation” in executive session and chose to discuss the adjournment of the annual meeting and proceeding to make amendments to the Association’s Bylaws in executive session because those issues relate to the potential litigation you threatened.

Now the reason the special meeting failed was again the Board’s fault, no doubt part of a grand conspiracy against you. In none of your posts do I remember you complaining that the SM was set for MLK day or that the HOA wouldn’t provide you with an approved proxy. In fact nowhere in the following sections of your By-Laws as posted on your website require the proxy to be an HOA approved proxy only that it contain certain elements. (bold by me)

Section 5.10 Proxies. Every person entitled to vote or execute consents shall have the right to do so either in person or by a written proxy executed by such person and filed with the Secretary of the Association. All proxies shall be revocable and shall automatically terminate upon transfer of title of a Unit by the Owner.

Section 5.11 Ballots. Any form of proxy or written ballot distributed by any person to the membership of the Association shall afford the opportunity to specify a choice between approval and disapproval of each matter or group of matters to be acted upon. It shall not be mandatory that a candidate for election to the Board be named in the proxy or written ballot. The proxy or written ballot shall provide that, where the Member specifies a choice, the vote shall be cast in accordance with that choice. The proxy shall also identify the person who is authorized to exercise the proxy and the length of time it will be valid.

I’ll agree that the meeting should not have been set on MLK day but as long as the Association posted proper notices for the event they did in fact do their part; besides in another post you complained about the quality of the HOA website and how they hadn’t changed its content since it went online well before the SM was scheduled. So what did you expect?

Since you’re covered by Davis-Stirling and it requires that that no other business be transacted at a SM other than what is on the agenda nothing could have been done other than talking about changing the quorum requirement anyway. From your website, bold/underline by me:

The petition read as follows:

The undersigned members representing 5% or more of the membership of the association hereby petition that the (i) board of directors set the earliest reasonable date, time and place for a special meeting for the purpose of discussing the reduction or elimination of the quorum requirement for the annual meeting and election of board members contained in Section 5.7 of Article 5 of the By-Laws of the Mountain Glen II Condominium Association, and in addition, reducing or eliminating the required voting percentage to change or update the By-Laws of the Mountain Glen II Homeowners Association and (ii) that notice be sent by the board to the membership as provided for in Section 7511(a) of the Corporations Code.

(2) Proxies shall not be construed or used in lieu of a ballot. An
association MAY use proxies if permitted or required by the bylaws
of the association and if those proxies meet the requirements of this
article, other laws, and the association's governing documents, but
the association shall not be required to prepare or distribute
proxies pursuant to this section.

No proxie use unless the board is ok with it.

RichardP13 (California)
Posts: 1,767

Posted:

Fred

Do you think this applies if the proxies are used for quorum purposes only. The reference you quoted is 1363.03 which deal specifically with Election Procedures, Secret Ballots and Inspectors of Elections.

GlenL (Ohio)
Posts: 5,491

Posted:

Actually Fred you only posted part of the law:

Civil Code §1363.03. Election Procedures, Secret Ballots, Inspectors of Election.

(d)

(1) For purposes of this section, the following definitions shall apply:

(A) "Proxy" means a written authorization signed by a member or the authorized representative of the member that gives another member or members the power to vote on behalf of that member.

(B) "Signed" means the placing of the member's name on the proxy (whether by manual signature, typewriting, telegraphic transmission, or otherwise) by the member or authorized representative of the member.

(2) Proxies shall not be construed or used in lieu of a ballot. An association may use proxies if permitted or required by the bylaws of the association and if those proxies meet the requirements of this article, other laws, and the association's governing documents, but the association shall not be required to prepare or distribute proxies pursuant to this section.

(3) Any instruction given in a proxy issued for an election that directs the manner in which the proxyholder is to cast the vote shall be set forth on a separate page of the proxy that can be detached and given to the proxyholder to retain. The proxyholder shall cast the member's vote by secret ballot. The proxy may be revoked by the member prior to the receipt of the ballot by the inspector of elections as described in Section 7613 of the Corporations Code.

Studies show that 5 out of 4 people have problems with fractions

GlenL (Ohio)
Posts: 5,491

Posted:

Quote:

Posted By RichardP13 on 01/20/2010 6:30 PM
Glen

Unless you know exactly what is going on and have been present at our meeting, I would respectfully ask that you do not comment at all. The governing docs and the law mean nothing to these people. Who gave you the keys to the pearly gates?

But Richard then no one could respond to your posts since no one knows exactly what is going on in your community. I simply responded to information you provided including that published on your website which you invited everyone here to view.

Studies show that 5 out of 4 people have problems with fractions

RichardP13 (California)
Posts: 1,767

Posted:

Quote:

Posted By GlenL on 01/21/2010 3:45 AM

Posted By RichardP13 on 01/20/2010 6:30 PM
Glen

Unless you know exactly what is going on and have been present at our meeting, I would respectfully ask that you do not comment at all. The governing docs and the law mean nothing to these people. Who gave you the keys to the pearly gates?

But Richard then no one could respond to your posts since no one knows exactly what is going on in your community. I simply responded to information you provided including that published on your website which you invited everyone here to view.

Glen

About two months I asked this forum a question about Annual Meetings and adjourning to a second meeting if quorum wasn't met. It seemed no one wanted to tackle the question.

In your long post, you only put the lawyers respond as it pertained to the quorum and executive meeting. Since you're good at research, put all that aside and see if you can answer the two questions regarding quorum and topics that can be discussed in Executive. You have access to all of our governing docs and you have access to Davis-Stirling.com. To help you with the "threat of pending litigation, I have written proof that the Board and PM discussed at the Annual Meeting to hold an Executive Session to discuss the election and amending Bylaws.

To the quorum issue, there are three key components, persons present at meeting, person present by proxy and persons who cast a ballot, but didn't attend the meeting. The person who cast a ballot, but didn't attend the meeting doesn't have a vote to adjourn for the very same reason that a Board Member, not at a Board Meeting doesn't get the opportunity to vote on any items to be voted on at that Board Meeting. I have read over 100 Bylaws from various HOA's and they all have the same language. There are earlier post on this forum, 1 year or more, that deal with the quorum issue and they came to the same conclusion I did.

If the election would have been fair, and I lost, with true sportsmanship I would have congratulated the winners and offered my support. Of the 39 ballots that the Association verified, I know for a fact I received at least 60 votes, maybe more. The most votes any current board member has received is the three BoD that appointed them. I wish I had known about proxies when I first ran, I didn't and the mistake is on me. But, based on the PM denying me access to the proxies for the Special Meeting, what would have stopped him from denying me then. I got a proxy form from our old PM, submitted for approval and denied, not legal, even though the same attorney would have signed off on. My story is not any different that many others out there have. I chose to fight and see this through.

Board Members have a fiduciary responsibility to the membership, in our case, appointed by themselves, to represent. How can you fine someone when the Board, collectively, have violated the laws of the State of California, written by individuals that I would only put on a slightly higher pedastal than our Board Members. When I started this, I didn't accuse anyone of anything. I went out and got facts and got support.

This is from Davis-Stirling.com, which actually employs Larry Stirling, one of the authors of the Act.

Lack of Quorum. If a quorum is not present, the members at the meeting may adjourn the meeting to a later date but may not conduct any other business. If the bylaws provide for a descending quorum, the membership may be able to conduct business at the subsequent meeting if the lower quorum requirements are met.

I don't see anything in that statement that suggests that the person at home watching TV who already mailed in his ballot should have been present to cast a vote to adjourn. I suppose as financial analyst, I could make a good case that 2+2=25, it worked in melting down the financial markets.

Glen, all I ask is you look at this objectively.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Glen & Richard,

Why don't you guys take this offline? I, for one, am getting tired of the back and forth between you two and the fact that your discussion has nothing to do with this thread. If you can't take it offline, perhaps Richard can start a separate thread and the two of you can continue arguing to your heart's content. Thanks!

RichardP13 (California)
Posts: 1,767

Posted:

Mary,

I won't be posting or asking any questions on this site any longer. This morning I got served papers from the Association's Attorney for questioning the Annual Meeting and Elections. As soon as the market improves my wife and I will sell our house and leave our community. I am done with HOA's and their dictatorships.