HOA Withholds List of Members Eligible to Vote

Here in Virginia, the Nonstock Corporation Act requires that:

"the association SHALL make available for inspection a list of members eligible to vote 10 days prior to the meeting"

Our initial meeting to elect board members is on May 10th. I requested to examine the list to verify that I am eligible to vote. The association, via the attorney, denied my request on the basis of a federal stature that protects those with consumer debt from disclosure. The attorney stated that since the list would not include the 23 owners who are in arrears on their dues, one could discern their identity and then they might sue the association. We have 800 homes here. That would be quite a laborious task to compare the complete members list to the eligible list! The attorney cites the Va. Property Owners Association Act which says the association MAY withhold certain types of records in denying my request.

The Nonstock act goes on to say that if the association fails to comply (on providing the list of eligible members) then on the demand of any member the meeting must be adjourned until they comply.

I have no intention of demanding the adjournment of the meeting as we are all very anxious to have our own elected board in place as soon as possible and the declarant controlled board gone.

Any other ideas on further steps I can take?

David,

IMO, your HOA attorney has gone a little overboard in his opinion that the BOD can withhold the membership. First of all, the assn would not be in violation of the FDCPA (Fair Debt Collections Practices Act) if the names of the delinquent owners were not on the membership list, which would be in accordance with the Nonstock Corp statute you referenced. The State statute says "members eligible to vote" which would not include those currently delinquent. To say a member who is delinquent could sue the assn because anyone seeing the list would know they are delinquent is a bogus excuse, to say the least. Then referencing the VA Prop Owners Assn Act which says you may be denied certain types of records doesn't seem to apply to your request either. I haven't seen that particular statute but I'll bet the records which can be withheld are those that are considered confidential and you're not asking for any confidential info. IMO, the assn attorney is just putting up a smoke screen to justify the BODs reluctance to provide a membership list.
However, if there is no state agency to complain to then you will have to go along with the board's actions, even if based upon bogus opinions of their attorney. Now once the election takes place and the board is made up of members and the declarant is gone, then the BOD can research HOA attorneys and hopefully find one who is more well-versed in HOA law.

Thanks for the responses.

There have been ongoing trust issues between the homeowners and the declarant controlled board. There are three resident appointees on the declarant board who are all candidates in this election. The election procedures which were prepared in executive session have been revised and reissued twice after homeowners pointed out aspects that were not in conformance with the governing documents.

There is a sizable group of homeowners that are openly opposing election of the three incumbents. We want assurances that this opposition has not led the board to manufacture minor covenants violations and/or small unpaid dues balances as a pretext to denying votes to those who oppose them. As only the board appointed election committee, which consists of an employee of the declarant and two residents, will be permitted to observe the counting of votes by the League of Women Voters, we have no assurance that all legitimate votes will be counted.

David,

In your request, did you cite the act? I've discovered that most board members don't know the VA Property Owners Act much less the non-stock corporation act. Therefore, citing the act in the request might help.

Being on the Board, I've also discovered that a home owner might get one letter from the attorney but the Board a separate letter explaining that if pushed, the Association would not win. The typical "lets see if they call our bluff" (I was actually surprised how often this was used).

That said, looking at both statutes, it does appear that there is some conflict between VA Non-stock Corporation Act § 13.1-845 and the VA Property Owners Act § 55-510.

"C. Books and records kept by or on behalf of an association may be withheld from inspection and copying to the extent that they concern:

9. Individual unit owner or member files, other than those of the requesting lot owner, including any individual lot owner's or member's files kept by or on behalf of the association" (§ 55-510).

Because of this conflict, the only way to actually remedy it would be to seek a legal interpretation. This would require the filing of a law suit to have the issue heard. Another option would be to pose the question to the VA Common Interest Community Ombudsman: Phone: 804-367-2941 Email: [email protected]

If you intent was to make sure you were eligible to vote you should just ask that question, as Glen suggested. If you wanted the list to solicit proxies, I would suggest soliciting proxies as you desire. If one is not valid, you should be told this when it is presented (it happened to me and I was told very discretely that one of the proxies I held was ineligible to cast a vote). If there is some other intent, you will have to decide how much it's worth to you and proceed from there.

Personally, I can see both interpretations being valid. As a Board member, I would not want to release the information either (due to privacy issues). As a member I would like to at least know how many are eligible to vote and who to solicit proxies from.

Tim

All,

This issue actually intrigued me as I can see the conflict between the right of the member to know who is eligible to vote and the right of an individual members privacy and the Boards requirement to do both. Therefore, I've sent an e-mail to the VA CIC Ombudsman and will let you know what answer I receive.

Tim

I did cite the specific language from the statute in my request.

You mentioned collecting proxies. Our election procedures provide only for an instructed proxy designating a member of the election committee as the person to vote the proxy. We attempted to deliver a general proxy from one member appointing another member as his proxy to the on-site manager as provided for in our bylaws. She refused to accept it.

About the only thing we can do at this point is to work our butts off within the election process we are stuck with to insure that we elect a majority of the board from the candidates we support.

Tim,

I have filed a formal appeal with the ombudsman's office previously on a different issue. They were useless on that too. My opinion is that the CICB and the ombudsman were deliberately designed by the HOA management industry and developer lobbies to appear to offer some protection to HOA members while actually accomplishing nothing. It is my understanding that nearly two years after the establishment of the office, no implementing regulations have yet been published or approved.

Don,

The request was for the members eligible to vote. This is required to be available to the members per corporation law. As you said, this enters into privacy issues because in the case of HOAs, the members eligible to vote are normally only those in good standing. Therefore, by a process of elimination, one can easily determine who is delinquent in their assessments.

Add another issue, the corporate law is a requirement and withholding the information based on privacy is an option (one I would expect most, if not all, Associations would rightfully use). See my previous post in this thread for links to the laws.

Tim

TimB4

You are getting hung up on the words. Just provide the list of members as required in state law and your governing documents. Eligibility to vote has several dimensions. Just focus on the dimension that a person must be a member of the association to be eligible to vote. Other dimensions can't be determined until the cut-off date for determining any other eligibility requirements. Explain that privacy considerations prevent publishing names of owners who haven't paid their dues/assessments.

Supply the full membership list with the explanation and let the member take further action.

Tim,

The AZ Nonprofit corp statute tackles both sides of this issue. It states that the Corp shall prepare an alphabetical list of the names of al its members who are entitled to notice of the meeting, which would be each member of the assn. Then it also states a second list shall be prepared listing members who are eligible to vote, meaning "in good standing". Now, why can't David's board do this? It certainly would solve the problem.

I agree with Tim in that there is a conflict between the two Virginia laws. My biggest complaint is that the board, through its attorney has made a determination that favors the rights of a small number of dead-beat members, who have not paid their dues, over the rights of all the other members. In such a situation, where there is a great deal of mistrust between the members and the declarant board, this decision only serves to further raise suspicions.

Mary,

Yes I read your response. I just don't see how it helps our situation. ALL members received the meeting announcement and absentee ballot/proxy form. What they have no way of verifying is whether their vote will actually be counted or whether it will be disallowed because, for whatever reason, their name is not on the list of eligible voters that they are not being permitted to review in accordance with state law.

The full membership list is widely available and is not at issue. In Arizona, the second list may legally be restricted to the BOD but in Virginia the law gives members the explicit right to examine that list.

Perhaps this would not be such a sticking point if the declarant board didn't have such an extensive history of rigid enforcement of the governing docs as they apply to members while selectively and unilaterally deciding which of the governing doc provisions to obey themselves.

Mary,

In the circumstances that have prevailed in our association I subscribe to the adage of "trust but verify". It is ONLY by seeing the list of eligible voters that one can verify that his/her vote will be counted. Is this a bit paranoid? Yes. I would be much less paranoid if this were the only instance of the association attorney employing convoluted legal reasoning to withhold information that the governing docs give us the right to examine.

In any case, the election is tonight so the issue will be moot.

David,

I will be the first one to state that the gov docs must be followed. However, in this case, there are extenuating circumstances that must prevail. The
"old" board should remain in office until the newly elected board takes over. If you look hard enough you may find a state statute that states a board member shall remain in office until he is replaced. I know there is such a statute in the AZ nonprofit corp statutes.

David,

In my opinion, and I am not a lawyer, the election was properly held and therefore, the terms of the previous directors have expired. Contrary to Marys advise, I would sit the six directors that were duly elected and the seventh seat should remain vacant until the runoff election. The winner of the runoff election will then fill the remaining seat.

The current six should satisfy any quorum requirement and can therefore conduct the business of the Association.

Unless your Associations Documents say otherwise, I believe that this is in compliance with VA laws.

Tim

Robert,

The authority would come from the election officials announcing that a fair and proper election occurred with the results being seats 1-6 were won by xyz and there is a tie for seat 7 which will result in a runoff election for that seat to be held on mm/dd/yyyy.

It could be decided that one of the original developers appointed board would remain in that seat until the runoff or that that seat would remain vacant. Either way, the identified six should not be prevented from taking the seats they were elected to.

This is also the first time I've heard of the League of Woman's Voters being involved. However, if there are issues in the current make up it sounds like an excellent idea for removing suspicions and calm perceptions. I also agree that fighting the Board is a no win situation.

David,

I would suggest that you recommend to the election committee that, after the recount, they seat those candidates who clearly won the election and have the make a recommendation to the existing board to either chose one person to remain or to leave the seat vacant until the run-off election decides who is elected to the final seat.

Tim