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BB2
(Missouri)

Posts:26

07/16/2008 8:06 AM
We need help on this one. A ballot was sent out along with the statement "if not returned by July 31. 2008" it will be counted as a yes vote. Nothing in by-laws allows this not sure about state statutes we are in MO. Additionally they were sent by regular mail the HOA has no way of knowing if everyone got theirs. Is this legal or acceptable?

GeraldT4

Posts:932

07/16/2008 8:51 AM
BB2 - An unreturned ballot can't be counted as a yes, or no vote. Though logic of this is often lost in associations. Could you imagine if all those that didn't vote for a presidential candidate, or anyone in office were counted as yes votes? Your gov. documents should outline what method of mailing is necessary to use.

BruceF1
(Connecticut)

Posts:499

07/16/2008 10:58 AM
Posted By BB2 on 07/16/2008 8:06 AM We need help on this one. A ballot was sent out along with the statement "if not returned by July 31. 2008" it will be counted as a yes vote. Nothing in by-laws allows this not sure about state statutes we are in MO. Additionally they were sent by regular mail the HOA has no way of knowing if everyone got theirs. Is this legal or acceptable? I've seen this before in this forum and it seems to me to be a common tactic employed by ignorant boards to get around homeowner apathy to get the board's actions approved by the members. The problem is, in most cases, it's probably not legal, but the board doesn't know any better because they are not familiar with their own documents, let alone the law. Anyway, that's my guess. First, Missouri does have laws on corporations and on "Condominium Associations." I don't know if other HOA forms are included in the condo laws, you'd have to check. You can google for your state laws. By your use of the word "ballot" I am assuming you are referring to an absentee ballot. Unless your bylaws allow the use of an absentee ballot, they are illegal. I quickly glanced at the Missouri statutes and found sections on proxies but I saw nothing on abstentee ballots. A proxy is not the same thing as an absentee ballot. As far as U.S. mail goes, if your governing documents and state law stipulate U.S. First Class mail, then delivery into the mail system is all that is required. There is no guarantee of delivery with first class mail, so no guarantee of actual delivery to the recipient is required or necessary for the law to have been satisfied. Your board cannot make up its own rules. They have to abide by the governing documents and state law, and adhere to accepted parliamentary procedure unless they have adopted some other procedure that is in writing and approved by the homeowners. 1. Accepted parliamentary procedure states that the absence of a vote is not to be counted as either a yes or a no vote. There are instances when the absence of a vote may have the same effect as a no vote, although it is never counted as one. I know of no instance, under accepted parliamentary procedure, when the absence of a vote can have the effect of a yes vote. 2. If your bylaws or other governing documents don't authorize the use of an absentee ballot, then it can't be used. 3. If absentee ballots are authorized, then for an unreturned ballot to be counted as a yes vote, that would also have to be authorized in your governing documents. IMO, it's probably not there because the people who draft these types of documents (usually lawyers) generally know better.

BrianB
(California)

Posts:1646

07/16/2008 6:03 PM
i am just giving notice, anyone who doesn't post their credit card information in a follow up message is agreeing to send me $20 by august 14th.

RobertR1
(South Carolina)

Posts:2008

07/16/2008 6:38 PM
Brian and all, If I don't send you my credit card information by 14th Aug does that mean I have agreed to send this information by the 14th. If so, can I agreed not to send you that information and by so doing agree that you can get the information, when I agree to send it, OR NOT? A vote, by definition is an action given with free will. If you do nothing you have not voted for or against, thus, not voted. Which I suppose is an action, but to me, is also ludicrus. Wonder what the rest of this story is?

MaryA1
(Arizona)

Posts:1888

07/17/2008 3:45 AM
So if all the unreturned ballots are counted as a "yes" vote, does that mean they also count toward a quorum? How do you spell ludicrous?

RobertR1
(South Carolina)

Posts:2008

07/17/2008 4:31 AM
What you mean this "Quorum", what is "Quorum", we not need nostinkin "Quorum", we got "Yes" votes. You want, "Yes Votes?", come by tomorrow we have new batch "yes votes" not coming in mail. How many you want? For you, special deal.

SusanW1
(Michigan)

Posts:1804

07/17/2008 6:02 AM
Attend the next meeting and call a Point of Order and declare any ballot vote null and void. Then tell them the correct way to conduct a mail-out vote (which should be permitted in the governing documents or that can't even happen) What a mess! WHY did they think they could hold a vote this way?

RobertR1
(South Carolina)

Posts:2008

07/17/2008 11:46 AM
Susan, Something about this "no vote is a yes vote" seems to be hanging around in my brain. I know I have heard of something like this, and as a wild guess it seemed to be connected to votes of a corporation that had written something like this into the documents to get around something else. I just can't recall, and if I did I would say it is still ludicrous. (if that is spelled right, so is my first attempt, because that would mean I only made a one letter error. When I went to school we were allowed to mispell three different letters in big words.

DonnaS
(Tennessee)

Posts:2509

07/17/2008 12:24 PM
Robert, Sharp eye and mind today. They don't need "No stinkin quorum" because every member is being counted as having voted by 100%. Boy , does that solve all of our cancelled meetings and voting problems because of lack of interest. TOTAL NEW CONCEPT!! Show me the Mo. Statutes that allows that.

RobertR1
(South Carolina)

Posts:2008

07/17/2008 1:06 PM
Donna, You have just raised the question in my mind (why do you do that, maybe that is close to how I have seen our Regime operate at times. A close enough instance is a one annual meeting , maybe 40 couples there along with co-owner of multiple owner units nd a motion was made to comit a big chuck of money for "enhncements", I objected because I don't think you can spend money this way...to no avail. The President asked for a show of hands, declared acceptance and they went on and did it. Now five years later, we are still tied into some design team and even though the work that was done was ok, they now want to continue spending more money under the agreement. I am sure you agree, a show of hands at an open meeting doesn't even verify that each hand has a vote. You could have ten owners from one unit and they sure don't all have a vote. All this with no thought or consideration of an apportioned vote. Inretropect, they are saying vote only if you vote no. I can't get my mind around that one.

DonnaS
(Tennessee)

Posts:2509

07/17/2008 1:18 PM
Robert, What would every poster ask?" What do your Documents say about such a large expense?" There is the real question. Any time a large amount is spent, I think that all members should have say so in the decision. A show of hands to me was illegal to make a major financial decision. Enhancements meant what? Upgrading exhisting amenities or to the structures? We have the same thing in my rental villa association. Lets put in this and put in that. Most of these folks are seasonal, just like your place. They can afford 2 places and don't ever think about the homestaeded folks who foot bills that these guys don't for the communities beyond the gated walls.

BruceF1
(Connecticut)

Posts:499

07/17/2008 1:46 PM
Posted By RobertR1 on 07/17/2008 11:46 AM Susan, Something about this "no vote is a yes vote" seems to be hanging around in my brain. I know I have heard of something like this, and as a wild guess it seemed to be connected to votes of a corporation that had written something like this into the documents to get around something else. I just can't recall, and if I did I would say it is still ludicrous. (if that is spelled right, so is my first attempt, because that would mean I only made a one letter error. When I went to school we were allowed to mispell three different letters in big words. Robert, The "absence of a vote is a yes vote" issue has been posted in this forum at least a couple of times in the past that I am aware of. Maybe that's where you saw it before? I have heard of boards of corporations mailing out proxy forms to stockholders and asking that the stockholders return them signed thereby authorizing the board to cast their ballots for them. I suppose that amounts to a yes vote since the board can cast the stockholder's vote any way it chooses, which usually would be in favor of many of the motions on the agenda that have been placed on the agenda and recommended by the board. But, if you fail to return the signed proxy form it doesn't count as any vote at all.

BruceF1
(Connecticut)

Posts:499

07/17/2008 1:55 PM
Posted By BrianB on 07/16/2008 6:03 PM i am just giving notice, anyone who doesn't post their credit card information in a follow up message is agreeing to send me $20 by august 14th. Brian, I like your approach best, so here's my credit card information: It's grey, measures 2-1/8" x 3-3/8", and has the bank name on top and my name on the bottom. The account number is in the middle, and below that is the expiration date. In the lower right-hand corner there is a major card issuer logo. On the back there is a magnetic strip and below that is a place where my signature goes. Below that is a lot of fine print and a couple of telephone numbers. Do I get to keep my $20?

RobertR1
(South Carolina)

Posts:2008

07/17/2008 2:01 PM
Donna, As you know and lots will find out in this life of commuity living, there is usually a clause somewhere in your CC&R's that state the Board can do anything they decide under a certain set of circumstances, or if their is conflict about decisions, the board can decide what needs to be done under the authorization of they decided it was the right thing to do. You can specify, stipulate and restrict all you want, but bottom line, when it comes to spending money or making committments the board has final say. All this in most associations can be challenged in the court, and maybe you will win. But, you cannot go up and throw them out of the building or sue them or make them stop what they are doing. The power to control the Board comes from the people, and most of the time you lack that much committment from the owners. So we end up playing games with voting and committees and infighting and hand slapping to get enough visqble pressure to make some changes. That is also why it takes so long to stop anything or to start anything. A general over view of our place anyway. I would not any of the specifics in this post, because they are formed from a limited exposure to huge numbers of boards. ut you know Donna, it is fine to elect a representative of the people that that don;t mean he is going to behave that way.

BruceF1
(Connecticut)

Posts:499

07/17/2008 2:33 PM
Posted By RobertR1 on 07/17/2008 2:01 PM Donna, As you know and lots will find out in this life of commuity living, there is usually a clause somewhere in your CC&R's that state the Board can do anything they decide under a certain set of circumstances, or if their is conflict about decisions, the board can decide what needs to be done under the authorization of they decided it was the right thing to do. You can specify, stipulate and restrict all you want, but bottom line, when it comes to spending money or making committments the board has final say. All this in most associations can be challenged in the court, and maybe you will win. But, you cannot go up and throw them out of the building or sue them or make them stop what they are doing. The power to control the Board comes from the people, and most of the time you lack that much committment from the owners. So we end up playing games with voting and committees and infighting and hand slapping to get enough visqble pressure to make some changes. That is also why it takes so long to stop anything or to start anything. A general over view of our place anyway. I would not any of the specifics in this post, because they are formed from a limited exposure to huge numbers of boards. ut you know Donna, it is fine to elect a representative of the people that that don;t mean he is going to behave that way. That's noy entirely true in our case. Both our CCRs and state law enumerate specific things the board CANNOT do under any circumstances, such as determine the qualifications and the terms of board members, dissolve the HOA, amend the CCRs, etc. The problem is, some board members think they have more power than they really have. Of course, they may try anything and might get away with it as long as people let them.

MaryA1
(Arizona)

Posts:1888

07/17/2008 2:56 PM
Posted By BruceF1 on 07/17/2008 2:33 PM Both our CCRs and state law enumerate specific things the board CANNOT do under any circumstances, such as determine the qualifications and the terms of board members, dissolve the HOA, amend the CCRs, etc. The problem is, some board members think they have more power than they really have. Of course, they may try anything and might get away with it as long as people let them. Bruce, Thinking they have more power than they really do and trying to get away with anything -- that's only part of it. There are far too many boards who really don't know what they're doing. They have no idea what their gov. docs allow or disallow. They haven't a clue about state law. They have no business acumen. I could go on and on. Education is sorely lacking. Some of these board members really mean well, they just don't have the resources needed and perhaps don't even know where to go to get the needed education.

BruceF1
(Connecticut)

Posts:499

07/17/2008 3:41 PM
Mary, I'll second that!

BrianB
(California)

Posts:1646

07/17/2008 4:32 PM
yes bruce, YOU get to keep your money. everyone else... another story.

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