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Subject: Board Actions without meeting in Virginia
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Author Messages
TimB4
(Virginia)

Posts:14860


10/31/2017 6:54 PM  
Virginia has an open meeting requirement for Associations.
Most Virginia Associations are incorporated.
Corporate code allows Actions without meeting (AWM)
Recently, a complaint was made to the Virginia Common Interest Community Ombudsmans office about use of AWM.

Initially, the Ombudsman said that the AWM was not compliant with the open meeting act.
The Association replied that AWM is compliant with corporate law and authorized in the governing docs.
The Ombudsman determined that no action was required by the Association (hence AWM is allowed).

I'm curious what the legislatures will make of this and if they will take action or not.

Not intended as a discussion on AWMs.
Simply an interesting issue.

See the Ombudsman's decision here: File 2017-01395

See other decisions (all topics) here: Office of the Common Interest Community Ombudsman, Determinations
GenoS
(Florida)

Posts:1631


10/31/2017 10:01 PM  
Similar situation in Florida. The general not-for-profit corporation statute (FS 617) permits boards to take actions without a meeting. The condo and HOA statutes, however, supercede FS 617 and define what constitutes a board meeting and that board meetings must be properly noticed and open to all owners. Although not spelled out in so many words, it's generally accepted in Florida that an Action Without Meeting constitutes the conduct of association business without meeting any of the requirements for a "board meeting".

It is an interesting question. Hopefully Virginia will iron out the details with a bit more clarity than Florida did. To my knowledge, in spite of the consensus of Florida's legal community and Property Mangement industry, there have been no court cases or arbitration rulings that have ruled specifically on the issue.
PaininyourA
(South Carolina)

Posts:119


11/01/2017 8:21 AM  
Actins Without a Meeting generally must be UNANIMOUS and SIGNED.

If unanimous there is no real need for a meeting.

? What is to be discussed if 'unanimity' is achieved ?
AugustinD


Posts:603


11/01/2017 9:29 AM  
I read the Ombudsman's decision you provided. I see the author of the decision is an attorney. She wrote, "actions without meetings do not constitute a meeting... " The Virginia Property Owners Association Act at 55-510.1 states, inter alia, "The board of directors shall not use work sessions or other informal gatherings of the board of directors to circumvent the open meeting requirements of this section." It seems to me that state statutes would trump the Bylaws. I think a court would say that the HOA violated this statute. At present, I find the decision legally inadequate.

Virginia is lucky to have sunshine laws for HOA meetings, decision-making, and so on. It is too bad that this state Ombudsman's office seems disinterested in transparency as apparently required by the HOA statutes in Virginia. I wonder how often this office has been overturned in court in recent years.
JeffT2
(Iowa)

Posts:346


11/01/2017 12:17 PM  
I like the decision. Iowa has an open meeting law for condominiums (not HOAs), but meetings require a seven day notice and there's no provision for emergencies (stupid law). One of the ways to deal with urgent situations is action without a meeting. The name contains the key words "without a meeting." The Iowa nonprofit law says that action "may be taken without a meeting if each director signs a consent..." So it does not conflict with a requirement for meetings to be open when there is no actual meeting.

I also lioke Augustin's comment. AWM should not be the usual course of business.
RichardP13
(California)

Posts:2050


11/01/2017 1:37 PM  
Below is a section from one association's Bylaws. California banned AWM a couple of years ago for the reason outlined in bold. Associations were running amok, holding email or telephone "meetings", but never following up with informing the members present at the next open meeting what had been done. In California, a meeting is defined as being at the same place and time. These AWM are done via email, which isn't at the same time and place. Furthermore, Board meetings are defined by the Davis-Stirling Act as a gathering of a majority of directors at the same time and place to "hear, discuss, or deliberate upon any item of business that is within the authority of the board. "Item of business" means any action within the authority of the board, except those actions the board has validly delegated to any other person or persons, managing agent, officer of the association, or committee of the board comprising less than a majority of the directors. Action is taking a vote or making something happen, discussions are not actions.

Then you run into the problem where all Board members live off site in a small community and technically meet once a quarter.

Section 6.17 Action Without Meeting. Any action by the Board of Directors may be taken without
a meeting if all members of the Board shall individually or collectively consent in writing to such
action. Such written consent or consents shall be filed with the minutes of the proceedings of the
Board and shall have the same force and effect as a unanimous vote of such directors.
Any action so
taken by the Board shall be posted in a prominent place within the Common Area within three (3)
days after all of the written consents have been obtained. If the Common Area consists only of an
easement or is otherwise unsuitable for posting the explanation of the action taken, the governing
body shall communicate said explanation by any means it deems appropriate.
TimB4
(Virginia)

Posts:14860


11/01/2017 3:06 PM  
Posted By AugustinD on 11/01/2017 9:29 AM

I think a court would say that the HOA violated this statute.




Augustin,

As in all States, statutes control unless they defer.

The issue here is that statutes appear to conflict with each other.

Everyone agrees that the intend of the open meeting act is to minimize or eliminate AWMs. However, corporate statute, as that Association pointed out, supports AWMs providing that they are unanimous and notated in the next scheduled meeting. Additionally, the property statutes (HOA or COA) don't flat out prohibit AWMs.


Additionally, as the decision points out, the scope of the Ombudsmans office doesn't allow them address corporate code.

Like I said, I'm curious what, if anything, the legislature will do now.
TimB4
(Virginia)

Posts:14860


11/01/2017 3:13 PM  
Posted By RichardP13 on 11/01/2017 1:37 PM

California banned AWM a couple of years ago for the reason outlined in bold.




Richard, we had this discussion before.

CA still allows AWMs, but only under limited circumstances (by defining an emergency) and they are now called emergency meetings. The result is the same, an action without a meeting.
TimB4
(Virginia)

Posts:14860


11/01/2017 3:14 PM  
Posted By JeffT2 on 11/01/2017 12:17 PM

AWM should not be the usual course of business.




Completely Agree
AugustinD


Posts:603


11/01/2017 3:25 PM  
Jeff, that's a good point about urgent and emergency situations. The Virginia HOA statute says this on the subject: "Notice, reasonable under the circumstances, of special or emergency meetings shall be given contemporaneously with the notice provided members of the association's board of directors or any subcommittee or other committee thereof conducting the meeting."

I presume good judgment is also expected. E.g. a water line breaks. Life and property are clearly at grave risk given the nature of the break. Does the HOA need formal documentation that it voted for the repair to proceed? I say a court would say no. Documenting afterwards would be required.
RichardP13
(California)

Posts:2050


11/01/2017 3:37 PM  
Posted By TimB4 on 11/01/2017 3:13 PM
Posted By RichardP13 on 11/01/2017 1:37 PM

California banned AWM a couple of years ago for the reason outlined in bold.




Richard, we had this discussion before.

CA still allows AWMs, but only under limited circumstances (by defining an emergency) and they are now called emergency meetings. The result is the same, an action without a meeting.



There are two different meanings to this. We have had emergencies meetings in the past. You can conduct an AWM in an emergency, but it is not called a meeting, hence, Action Without a Meeting.
JanetB2
(Colorado)

Posts:3642


11/02/2017 8:40 PM  

Tim noted: "I'm curious what the legislatures will make of this and if they will take action or not."

As you Tim noted the State Statues conflict ... therefore, one would hope that the Legislators properly address. I would contend that most likely they will eventually address.
JeffT2
(Iowa)

Posts:346


11/04/2017 10:09 AM  
What is the conflict between statutes? The omsbudman's report says: "actions without meetings do not constitute a meeting...". If there is no meeting, then there is no requirement that the non-meeting be open. AWM is action without a meeting.
KarenP1
(Virginia)

Posts:39


11/10/2017 3:37 PM  
the office of the common interest community ombudsman cannot read association documents or handle internal matters even if they are mentioned in the poa act, nor handle not for profit statutes. new laws should be enacted to permit them to handle anything which is contained in the poa act. the largest complaint received regards board behavior. I have contact my state delegate to request hoa reform in Virginia due to the current helplessness of owners. boards need to be able to perform their duties, however owners need to be protected from abuse.
thank goodness that my current board has a new president who really wants to do things "right" and is very responsive to home owners.

karey
KarenP1
(Virginia)

Posts:39


11/10/2017 3:37 PM  
the office of the common interest community ombudsman cannot read association documents or handle internal matters even if they are mentioned in the poa act, nor handle not for profit statutes. new laws should be enacted to permit them to handle anything which is contained in the poa act. the largest complaint received regards board behavior. I have contact my state delegate to request hoa reform in Virginia due to the current helplessness of owners. boards need to be able to perform their duties, however owners need to be protected from abuse.
thank goodness that my current board has a new president who really wants to do things "right" and is very responsive to home owners.

karey
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Forums > Homeowner Association > HOA Discussions > Board Actions without meeting in Virginia



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