Electronic Voting to Amend Covenants

Terry,

A little more information is needed as offering advise based on one sentence is difficult. Can you provide the language in the full section/paragraph that line is taken from?

Additionally, there are other factors that might come into play if your incorporated. Specifically VA Non-stock Corporation Act section § 13.1-846. Voting entitlement of members allows for the voting of directors by mail it is silent on other types of voting. Although § 13.1-847.1. Voting procedures and inspectors of elections give a strong indication that there needs to be a verifiable paper trail of the ballots. I believe that this is the reason for US Mail. However, proxies covered under § 13.1-847 allow for electronic versions.

Therefore, my advise would be not to conduct the actual vote via e-mail. Instead, encourage instructed proxies [which can be e-mail. These can be sent to the Board. This would be similar to voting by electronic mail but more in line with complying with existing laws. You would need to hold a special meeting vs. voting by mail (so the ballots could be cast at the meeting), just a procedural issue, but instructed proxies could be sent by mail or e-mail allowing the members to still "vote" via proxy and not be required to attend the meeting.

The following is from the Fairfax County Community Association Manual regarding proxies:

Two types of proxies, “instructed” and “uninstructed”, are commonly used. An instructed proxy authorizes the assigned person to cast the member’s vote in a designated way on each specific issue, e.g., to vote for/against a specific slate of nominees, or for/against proposed change(s) in the documents, etc.. An uninstructed proxy does not designate how the authorized person is to vote on each issue. The governing documents of an association allocate votes to the owner/members, however, some documents are silent on who may be assigned by an owner/ member to cast a vote by proxy. While it may not be a violation to choose a non-owner, the voting membership should be reminded (via the proxy instructions) that non-owners have no vested interest at stake and
may not understand the impact of a particular issue or director/trustee position to be voted. Moreover, contracted management should have no part or involvement in deciding association elections. Assignment of a proxy to a management company, its on-site agent, or representative (who is not an member of the association) causes a serious conflict of interest, a breach of professional and ethical standards, and could invite a liability claim against the directors and/or the association.

Hope this helps,

Tim

Thanks Tim. The full paragraph from the by-laws is: "Association voting by mail may be conducted between annual or regular meetings, if deemed necessary by the Board. Reasonable notice of at least forty-five (45) days must be given for such votes. Such actions require passage by a majority of all association members in good standing, who vote, providing the total votes meet the normal association meeting quorum requirement." (which is 10%) The only thing in the covs. is: "This declaration of protective restrictions and covenants may be amended or modified by a majority vote of the Association."

Thanks for the info. from the non-stock corp. act too. I didn't even think to look there. We do allow proxy voting, but haven't had much success with that either. We have a serious lack of interest or laziness issue at play here, so completing a proxy form and mailing (or even emailing) it back is serious effort for some. We are in Louisa County (Lake Anna)- where there are a number of POA's/HOA's - but things move at a much slower pace than they do in Fairfax! And again, because so many of the owners live out of the area (and even out of state)it's like pulling teeth to get any response. Some of the owners who consistently don't return their ballot who we have talked to have said that the proxy vote is too much work.

But...sounds like that might be our only option. Maybe allowing them to email it back will make the difference. Thanks again for the suggestions!

Terry,

In April, 2010 the following change to Virginia law was enacted:

2010 SESSION

CHAPTER 432
An Act to amend the Code of Virginia by adding sections numbered 55-79.71:1 and 55-515.3, relating to the Virginia Condominium Act; the Virginia Property Owners' Association Act; amending association documents using technology.
[H 1058]
Approved April 11, 2010

Be it enacted by the General Assembly of Virginia:

1. That the Code of Virginia is amended by adding sections numbered 55-79.71:1 and 55-515.3 as follows:

§ 55-79.71:1. Use of technology.

A. Unless the condominium instruments expressly provide otherwise, (i) any notice required to be sent or received or (ii) any signature, vote, consent, or approval required to be obtained under any condominium instrument or any provision of this chapter may be accomplished using the most advanced technology available at that time if such use is a generally accepted business practice. This section shall govern the use of technology in implementing the provisions of any condominium instrument or any provision of this chapter dealing with notices, signatures, votes, consents, or approvals.

B. Electronic transmission and other equivalent methods. The unit owners' association, unit owners, and other persons entitled to occupy a unit may perform any obligation or exercise any right under any condominium instrument or any provision of this chapter by use of any technological means providing sufficient security, reliability, identification, and verifiability. "Acceptable technological means" shall include without limitation electronic transmission over the Internet or the community or other network, whether by direct connection, intranet, telecopier, or electronic mail.

C. Signature requirements. An electronic signature meeting the requirements of applicable law shall satisfy any requirement for a signature under any condominium instrument or any provision of this chapter.

D. Voting rights. Voting, consent to and approval of any matter under any condominium instrument or any provision of this chapter may be accomplished by electronic transmission or other equivalent technological means provided that a record is created as evidence thereof and maintained as long as such record would be required to be maintained in nonelectronic form.

E. Acknowledgment not required. Subject to other provisions of law, no action required or permitted by any condominium instrument or any provision of this chapter need be acknowledged before a notary public if the identity and signature of such person can otherwise be authenticated to the satisfaction of the executive organ.

F. Nontechnology alternatives. If any person does not have the capability or desire to conduct business using electronic transmission or other equivalent technological means, the unit owners' association shall make reasonable accommodation, at its expense, for such person to conduct business with the unit owners' association without use of such electronic or other means.

G. This section shall not apply to any notice related to an enforcement action by the unit owners' association, an assessment lien, or foreclosure proceedings in enforcement of an assessment lien.

§ 55-515.3. Use of technology.

A. Unless the declaration expressly provides otherwise, (i) any notice required to be sent or received or (ii) any signature, vote, consent, or approval required to be obtained under any declaration or bylaw provision or any provision of this chapter may be accomplished using the most advanced technology available at that time if such use is a generally accepted business practice. This section shall govern the use of technology in implementing the provisions of any declaration or bylaw provision or any provision of this chapter dealing with notices, signatures, votes, consents, or approvals.

B. Electronic transmission and other equivalent methods. The association, lot owners, and those entitled to occupy a lot may perform any obligation or exercise any right under any declaration or bylaw provision or any provision of this chapter by use of any technological means providing sufficient security, reliability, identification, and verifiability. "Acceptable technological means" shall include without limitation electronic transmission over the Internet, or the community or other network, whether by direct connection, intranet, telecopier, or electronic mail.

C. Signature requirements. An electronic signature meeting the requirements of applicable law shall satisfy any requirement for a signature under any declaration or bylaw provision or any provision of this chapter.

D. Voting rights. Voting, consent to and approval of any matter under any declaration or bylaw provision or any provision of this chapter may be accomplished by electronic transmission or other equivalent technological means provided that a record is created as evidence thereof and maintained as long as such record would be required to be maintained in nonelectronic form.

E. Acknowledgment not required. Subject to other provisions of law, no action required or permitted by any declaration or bylaw provision or any provision of this chapter need be acknowledged before a notary public if the identity and signature of such person can otherwise be authenticated to the satisfaction of the executive organ.

F. Nontechnology alternatives. If any person does not have the capability or desire to conduct business using electronic transmission or other equivalent technological means, the association shall make reasonable accommodation, at its expense, for such person to conduct business with the association without use of such electronic or other means.

G. This section shall not apply to any notice related to an enforcement action by the association, an assessment lien, or foreclosure proceedings in enforcement of an assessment lien.

David (or others who may know):

Here is my question specifically in regards to the above:

The original poster's by-law requirements do, in fact, expressly state the voting be done "by mail" -- not simply that notice or voting is "sent" or "received," but expressly states "by mail."

So, the question is, if the documents expressly state "by mail," shouldn't the documents still be amended to allow for simply that notice (or signature, vote, etc) be sent/received and omit the "by mail" express designation?

Because HOA/COA can be more restrictive than local/state/federal law, but not less restrictive.

As the above clearly now allows for technology, wouldn't the governing documents still be required to be amended to accommodate accordingly?

Michelle,

The key word is may.

This gives the board the option of having mail or a ballots at a meeting. Per VA law, proxies are allowed for votes at meetings and proxies may be via electronic means. Therefore, holding a meeting and using instructed proxies allows for e-mail responses from non-resident members. Someone will just have to transfer the instructed proxies onto ballots.

Tim

Tim,

Where did you find that effective date of 7-1-2010?

http://leg1.state.va.us/cgi-bin/legp504.exe?101+sum+HB1058

Scroll to the bottom of the page under status where it says approved by Governor. It says effective 7/1/2010

And ONLY when a specific criteria is met: that being when a vote is held between meetings. In other words, it appears that the allowance for voting by mail is granted only if a vote is held outside of a meeting. Because the by-law then proscribes the notice requirements that must still be met. In other words, if they were going to vote on an amendment that restricts garbage pick up to Mondays, and it is between meetings, they would have to first send out a 45-day notice that the vote is going to be such a vote before the ballots are even sent, and the reply must be equivalent to any quorum required at a meeting.

Otherwise, mail-in voting would not be accepted.



Yes.



No.

Because in your next sentence you spell it out. The documents aren't silent, they specify that voting between meetings may be done as long as that voting is by mail, which limits the type of voting allowed, and that is not by phone, by hand-delivery, and also not by email, so it is not silent. Therefore, the law will not apply to this particular passage once it takes affect.



Yes, This:


And that two reasonable people can come to somewhat different reasonable conclusions (you think that once the law takes affect they can vote by email between meetings, and I don't), then I agree, he really needs to seek advice from a paid professional who does this sort of thing for a living.