Get 2 months of free community web site hosting from Community123.com!
Sunday, October 21, 2018
Get 2 months of free community web site hosting from Community123.com!


SBCA: Free education for HOAs and condos on satellite placement issues.
(National Trade Organization)
Helping HOAs, condos and property managers with satellite placement issues since 1986.
Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.
Subject: unanimous written consent
Prev Next
Please login to post a reply (click Member Login on the menu).
Author Messages
LaskaS
(Texas)

Posts:59


10/01/2018 4:06 AM  
hello,

I have googled the definition of unanimous written consent,,and i've gotten slight variations in the definition.


for the purposes of HOA voting through email,, rather than a meeting..

does unanimous written consent, mean that every board member must respond to the email and also every board member must approve of the issue at hand??

or does it just mean that every board member must respond to the email and vote and then whatever a majority votes, that is the decision??

thank you
DouglasK1
(Florida)

Posts:1234


10/01/2018 5:10 AM  
Unanimous consent means all members of the board have to vote yes.

Escaped former treasurer and director of a self managed association.
RoyalpitA
(South Carolina)

Posts:147


10/01/2018 6:03 AM  
ditto
KerryL1
(California)

Posts:5767


10/01/2018 8:03 AM  
Yes, all (unanimous) directors must approve (consent.) Also known as taking action without a meeting. In CA, this must only be used in an emergency.
AdamR6
(Texas)

Posts:3


10/01/2018 11:30 AM  
Hi All,

I just want to clarify that a HOA board can take a vote by regular majority through an electronic medium, such as email.
If anyone has any evidence to the contrary, please post it here.

To support this I refer to: https://statutes.capitol.texas.gov/Docs/BO/htm/BO.22.htm

BUSINESS ORGANIZATIONS CODE
TITLE 2. CORPORATIONS
CHAPTER 22. NONPROFIT CORPORATIONS
SUBCHAPTER A. GENERAL PROVISIONS


Sec. 22.220. ACTION WITHOUT MEETING OF DIRECTORS OR COMMITTEE. (a) The certificate of formation or bylaws of a corporation may provide that an action required by this chapter to be taken at a meeting of the corporation's directors or an action that may be taken at a meeting of the directors or a committee may be taken without a meeting if a written consent, stating the action to be taken, is signed by the number of directors or committee members necessary to take that action at a meeting at which all of the directors or committee members are present and voting. The consent must state the date of each director's or committee member's signature.

(b) Prompt notice of the taking of an action by directors or a committee without a meeting by less than unanimous written consent shall be given to each director or committee member who did not consent in writing to the action.


Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 688 (H.B. 1737), Sec. 90, eff. September 1, 2007.
LaskaS
(Texas)

Posts:59


10/01/2018 12:27 PM  
can someone answer this,, apparently,, Texas corporation code doesn't require unanimous written consent.. but that's referring to general provisions for corporations.... can anyone lead me in the right direction to where the requirement for unanimous written consent is required for board approval in texas HOA board association decisions.
AdamR6
(Texas)

Posts:3


10/01/2018 12:39 PM  
Here is Sec 82.108 from the Texas Property Code : https://statutes.capitol.texas.gov/Docs/SDocs/PROPERTYCODE.pdf

If there is a potential conflict between Texas Property Code (1998) vs Texas Business Organizations Code (2007), which one trumps?

According to Sec 82.108(c) of the Texas Property Code below, a meeting of the board may be held by any method of communication, including electronic or telephonic. This would seem to indicate that electronic communication means such as e-email and text message are included. The idea is that using email reply-all and also live text messaing each director may thus be heard and hear every other director.

If anyone has any evidence which shows otherwise, please post it here.

PROPERTY CODE
TITLE 1. GENERAL PROVISIONS
CHAPTER 1. GENERAL PROVISIONS

Sec. 82.108. MEETINGS.
(c) Unless the declaration, bylaws, or articles of
incorporation of the association provide otherwise:
(1) a meeting of the board may be held by any method of
communication, including electronic and telephonic, if:
(A) notice of the meeting has been given in accordance
PROPERTY CODE
Statute text rendered on: 6/21/2018 - 513 -
with Subsection (e);
(B) each director may hear and be heard by every other
director; and
(C) the meeting does not involve voting on a fine,
damage assessment, appeal from a denial of architectural control
approval, or suspension of a right of a particular association member
before the member has an opportunity to attend a board meeting to
present the member's position, including any defense, on the issue;
and
(2) the board may act by unanimous written consent of all
the directors, without a meeting, if:
(A) the board action does not involve voting on a fine,
damage assessment, appeal from a denial of architectural control
approval, or suspension of a right of a particular association member
before the member has an opportunity to attend a board meeting to
present the member's position, including any defense, on the issue;
and
(B) a record of the board action is filed with the
minutes of board meetings.
RoyalpitA
(South Carolina)

Posts:147


10/01/2018 12:42 PM  
state law PERMITS less than unanimous IF, repeat IF, the corporate bylaws permit same

? can we not read ?
RoyalpitA
(South Carolina)

Posts:147


10/01/2018 12:43 PM  
y'all are confusing:

board meeting held electronically

with

action without a meeting
LaskaS
(Texas)

Posts:59


10/01/2018 12:50 PM  
exactly!.


a board meeting can not be held electronically.... only actions that require simple approval may be handled outside of a board meeting..

but our board is basically telling owners that every decision they have made ,, has been made through text and email and that they all approved..

however,there are no minutes..and from one day to the next the story changes..



The board had not kept minutes..owners can't tell what happened when. When we ask for clarification, we are met with indignation and accusations of harrasssment.

It's like the twilight zone.


If there have no minutes,, but when we keep pressing for minutes.. from january , february, march, april , of this year.. where contracts were signed for hundreds of thousands of dollars..

owners are told..we're still working on them.. or we are told that the decisions had board approval... THIS IS NOT AN ACCEPTABLE ANSWER. HOWEVER, they seem to think it is..
RoyalpitA
(South Carolina)

Posts:147


10/01/2018 1:42 PM  
? petition the appropriate court for 'receivership' ?

? recall the bums as per your corporate bylaws ?

! MOVE ?

? any other options ?
LaskaS
(Texas)

Posts:59


10/01/2018 2:17 PM  
we have gathered the petition for removal of the board,, we are now waiting for the secretary to verify the signatures. and the the special meeting to be called.

does anyone have any experience with D&O insureance actually paying damages to an hoa for breach of fiduciary duties of the previous board?

that's the hoa's only chance to be able to recoup some of the losses.

the new board will also pursue legal options against contractors that billed for work that they never did,, and then the board paid them, without checking that the invoices were valid..(i'm not making this up)
AdamR6
(Texas)

Posts:3


10/02/2018 7:30 AM  
Thank you all for clarity. Assuming that in the case of conflict of laws, the Texas Property Code trumps the Texas Business Orgnazations Code with respect to issues relating to HOs, then appears that, unless otherwise stated in an hOA’s by laws, all regular voting decisions by majority vote must occur within a verbal meeting (physical voice, telephone or video conference). Voting in writing (text, email) must be a unanimous yes (the test is unanimous consent, not abstain or no)

Here is Sec 82.108 from the Texas Property Code : https://statutes.capitol.texas.gov/Docs/SDocs/PROPERTYCODE.pdf


If anyone has any evidence which shows otherwise, please post it here.

PROPERTY CODE
TITLE 1. GENERAL PROVISIONS
CHAPTER 1. GENERAL PROVISIONS

Sec. 82.108. MEETINGS.
(c) Unless the declaration, bylaws, or articles of
incorporation of the association provide otherwise:
(1) a meeting of the board may be held by any method of
communication, including electronic and telephonic, if:
(A) notice of the meeting has been given in accordance
PROPERTY CODE
Statute text rendered on: 6/21/2018 - 513 -
with Subsection (e);
(B) each director may hear and be heard by every other
director; and
(C) the meeting does not involve voting on a fine,
damage assessment, appeal from a denial of architectural control
approval, or suspension of a right of a particular association member
before the member has an opportunity to attend a board meeting to
present the member's position, including any defense, on the issue;
and
(2) the board may act by unanimous written consent of all
the directors, without a meeting, if:
(A) the board action does not involve voting on a fine,
damage assessment, appeal from a denial of architectural control
approval, or suspension of a right of a particular association member
before the member has an opportunity to attend a board meeting to
present the member's position, including any defense, on the issue;
and
(B) a record of the board action is filed with the
minutes of board meetings.
TimB4
(Virginia)

Posts:15999


10/02/2018 7:36 AM  
Actually, there is no trumping (but it may be easier understood looking at it like that).


Corporate law requires a majority for Actions without meetings.
Property law requires unanimous for Actions without meetings.

This is simply a case where the applicable property law is stricter then the corporate law.
Hence, the property law must be complied with.


Similar to the city allowing 6 foot high fences but the HOA only allows 4 foot high fences.
LaskaS
(Texas)

Posts:59


10/02/2018 3:07 PM  
timb4, thanks so much for the clear concise explanation and example...!!
Please login to post a reply (click Member Login on the menu).
Forums > Homeowner Association > HOA Discussions > unanimous written consent



Get 2 months of free community web site hosting from Community123.com!



News Articles Provided by: Community Associations Network
News, articles and blogs about condos/HOA's

Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.







General Legal Notice:  The content of forum messages are from the posting member and have not been reviewed nor endorsed by HOATalk.com.  Messages posted by HOATalk or other members are for informational purposes only, are not legal or professional advice and do not constitute an attorney-client relationship.  Readers should not act upon this information without seeking professional counsel.  HOATalk is not a licensed attorney, CPA, tax advisor, financial advisor or any other licensed professional.  HOATalk accepts ads from sponsors but does not verify sponsor qualifications nor endorse/guarantee any sponsor's product or service.
HindmanSanchez Legal Notice:  (For messages posted by HindmanSanchez) This message has been prepared by HindmanSanchez for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Members of HOATalk.com should not act on this information without seeking professional counsel. Please do not send us confidential information unless you speak with one of our attorneys and get authorization to send that information to us. If you wish to initiate possible representation, please contact an attorney in our firm. Our attorneys are licensed to practice law in the state of Colorado only.

Legal Notice For Messages Posted by Sponsoring Attorneys: This message has been prepared by the sponsoring attorney for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Readers of HOATalk.com should not act on this information without seeking professional counsel. Please do not send any sponsoring attorney confidential information unless you speak with the sponsoring attorney or an attorney from the sponsoring attorney’s firm and get authorization to send that information to them. If you wish to initiate possible representation, please contact an attorney in the firm of the sponsoring attorney. Sponsoring attorneys that post messages here are licensed to practice law in a specific state or states as indicated in their message signature or sponsor’s profile page. (NOTE: A ‘sponsoring attorney’ is an attorney that is a HOATalk.com official sponsor and is identified as such in the posted message or on our sponsor page.)

Copyright HOA Talk.com, A Service of Community123 LLC ( Homeowners Association Discussions )   Terms Of Use  Privacy Statement