Andy Sirkin | 12-07-2013
What is the difference between a regular owner meeting and a special owner meeting?
A regular owner meeting is one held on a regular schedule prescribed in the governing documents. Most governing documents require one regular meeting (the “annual meeting”) each year. A special owner meeting is one that is not required by the governing documents, but rather has been convened for a special purpose.
Who can convene a special owner meeting?
A special owner meeting can be convened by the board, the chairman of the board (if any), the president, or any group consisting of at least 5% of the owners.
What kind of notice is required for an owner meeting?
Both regular and special owner meetings require a written notice at least twenty (20) but not more than ninety (90) days before the meeting. The notice may be given in several different way: (i) by email to an owner who has consented to receive notice in that manner; (ii) by first-class mail, registered or certified mail, express mail, or overnight delivery by an express service carrier; (iii) by posting the notice in a prominent location that is accessible to all owners and has been has been designated for the posting of notices in the association’s annual policy statement (see discussion above). When notice is given by posting, it must also be sent by one of the other permissible methods to any owner who has requested that he/she receive notices by mail or email. Note that notice is not required when the meeting is actually the continuation of another meeting that was adjourned within the previous 45 days as long as the time and place of the continuation meeting had been announced at the original meeting.
An owner meeting notice must include the place, time and date of the meeting, and the means of electronic transmission or electronic video screen communication, if any, by which owners may participate. For regularly scheduled owner meetings (such as the annual meeting), the notice must include a general description of the matters that the board expects to be discussed, and, in cases where directors are to be elected, the names of those who have been nominated (if any) prior to the notice date; however, matters not on the agenda may be discussed. For special owner meetings, the notice must include the general nature of the business to be transacted, and no business not described on the agenda may be transacted.
When a group of owners, acting independently from the board, wishes to convene a special meeting, they must send a written request to the board chairman (if any), president, vice president, or secretary, and that person is required to notify all of the owners of the meeting within 35-90 days of the request. The date of the special meeting is set by the board.
What happens if an owner meeting is held without proper notice?
Decisions made at an owner meeting held without proper notice are valid only if all of the following are true: (i) enough owners (a “quorum”) were present to allow decisions to be made at a properly noticed meeting, (ii) none of the owners at the meeting objected to the improper notice at the beginning of the meeting, and (iii) every owner who did not attend the meeting signs a waiver of notice or an approval of the meeting minutes.
Can the owners vote on matters not mentioned in the meeting notice?
Generally, at a regular owner meeting, the owners can vote on matters not mentioned in the meeting notice. An exception applies when less than 1/3 of the voting power is present. At a special owner meeting, the owners cannot vote on matters not mentioned in the meeting notice.
How many owners must be present for a quorum?
The governing documents generally specify the minimum amount of owner voting power (the “quorum”) that must be present for decisions to be made at an owner meeting. Participation through electronic means is the same as physical presence at the meeting. In general, the law allows the governing documents to control how many owners constitute a quorum and does not impose any minimum requirements; however, there are rare instances where the law imposes a 50% quorum requirement that supersedes the normal quorum level required by the governing documents (most notably, for increases in regular assessments where the association has not satisfied statutory requirements for budgeting and reporting). Also, the law states that if the governing documents permit a decisions with less than a 1/3 quorum, the only matters that can be voted on while less than 1/3 of the voting power is present are those mentioned in the meeting notice. (Note that this voting limitation would apply to special meetings no matter how many owners were present, but would not apply to regularly scheduled meetings.) The law also provides that if the governing documents fail to specify a quorum requirement, it will automatically be set at 1/3 of the voting power.
Are there procedural rules for conducting an owner meeting?
The law requires that all owner meetings be conducted in accordance with a recognized system of parliamentary procedure or any parliamentary procedures the association may adopt. Suggested owner meeting procedures are provided in The Condominium Bluebook. For certain votes, the law imposes very strict secret balloting procedures as described below.
When is secret ballot voting required and how does it work?
In response to complaints from homeowners that they felt harassed or intimidated when casting their HOA votes, the California legislature has enacted law to protect the privacy and voting anonymity of HOA members. Under California law, secret balloting requirements apply to all owner votes relating to election and removal of directors, amendments to the governing documents, the grant of exclusive use of common area to an owner, and assessment increases that?legally require an owner (rather than a board) vote (such as non-emergency increases of more than 20% in regular assessments, all increases in regular assessments if the association has not followed proper budgeting and reporting requirements, and non-emergency special assessments of more than 5% of the total budget). The secret balloting rules generally require that the board appoint either one or three “Inspectors of Elections”. An Inspector of Elections can be an owner who is not on the board, or someone who is not an owner provided that person is not a manager or in any other business relationship with the association. The association must send a secret written ballot to each owner at least 30 days before the voting deadline, by first-class mail, registered or certified mail, express mail, or overnight delivery by an express service carrier. The ballot may not identify the owner by name, unit number, or otherwise. It must be sent with two pre-addressed envelopes, one of which must be pre-addressed to the Inspector of Elections. The ballot must be inserted into one envelope (the one that is not pre-addressed) then sealed and inserted into the second, pre-addressed envelope. On the second envelope, the voter prints and signs his/her name, and provides his/her address and unit number. The voter then mails the second envelope (with the other envelope sealed inside, and the ballot inside that) to the Inspector of Elections, who must count the ballots in an open meeting of the board or owners. For more detailed instructions, refer to Civil Code §§5110 et seq.
Do the secret balloting requirements apply to small HOAs, such as condominium projects with only 2-4 units?
The secret balloting requirements apply to all common interest developments in California, regardless of the number of units or lots.
What should an owner do if he/she cannot attend an owner meeting?
An owner who cannot attend an owner meeting should give another person a proxy, which is a written form authorizing the other person to attend and vote for the absent owner. Proxy and Proxy Revocation forms are provided in The Condominium Bluebook.
Under what circumstances can an owner decision be made without a meeting?
Any matter that could be decided at an owner meeting can also be decided without a meeting except the election of directors by cumulative voting. To make owner decisions without an owner meeting, written ballots must be distributed to all owners. The ballots must contain the following information for each proposed action:
A description of the action;
A place to indicate approval or disapproval;
The response deadline;
The number of ballots that must be received by the deadline to satisfy the association’s quorum requirements; and
The percentage of approvals required for passage.
Owners must be given a reasonable time to return their ballots. Once returned, a ballot cannot be changed or revoked. A ballot is form is provided in The Condominium Bluebook.
How much voting power does each owner have?
A particular owner’s voting power is determined by the governing documents. In most homeowners associations, each owner has one vote of equal weight regardless of his/her ownership or assessment percentage, or the value or size of his/her unit or lot. If voting power is not specified in the governing documents, the law presumes that each owner has one vote of equal weight.
Are all owner decisions made by a majority vote?
The level of owner voting power required for approval is determined by the governing documents, and tends to vary depending on the type of decision. Most governing documents list a group of decisions requiring greater than majority approval, specify the level of approval required for each, and state that all other owner decisions are made by a majority. In instances where the governing documents are not specific, a majority approval requirement is presumed.
When interpreting voting requirements in governing documents or in the law, it is important to pay close attention to wording. When a matter requires the approval of a specified percentage, or the majority, “of all owners” or “of the total voting power of the association”, it means that the voting power cast for approval must be measured against the total voting power of all owners including those who did not cast votes. When a matter requires the approval of a specified percentage, or a majority, “of the owners” (i.e. without using the word “all”), or “of the votes cast”, it means that the voting power cast for approval is only measured against the total voting power cast.
What rules apply to owner meeting minutes?
The law requires that the association prepare and maintain minutes of all owner meetings, and that these minutes be made available to owners for inspection on written demand at any reasonable time for any reasonable purpose. The governing documents usually provide that the secretary is responsible to prepare the minutes within a prescribed number of days following the meeting.Back to News | View Related Link
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