Quote:
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.