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Subject: Special Meetings
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DebW3
(Arizona)

Posts:12


01/05/2020 5:07 PM  
We, (the members of the association), submitted a petition to the board requesting a Special Meeting. Everything I have read states the meeting must be Called, Noticed, and Held within thirty days after a board's receipt of the petition. They received the petition on 11/25/19 and to this date no meeting has been held. Do we win by default?
KerryL1
(California)

Posts:6817


01/05/2020 5:11 PM  
Did you call for a special meeting of the members? did you exactly follow the instructions for the petition to all a special meeting?

You asked if you "win"--win what?
DebW3
(Arizona)

Posts:12


01/05/2020 7:14 PM  
KerryL1, thank you for replying to my question. We did call for the special meeting and the board received the petition on the 25th of November but scheduled the meeting for the 7th of January. The petition is to recall the entire board. The President sent out a notice of the special meeting along with a proxy bid for people to use and he names himself as the proxy holder if they submit a proxy. My understanding on that from everything I can find to read is that if he is the proxy holder, regardless of how the member voted, he can change the vote to whatever he wants. It just doesn't seem right that he can do that especially since he is a subject to the petition, oh and a side note to that, he already sold his house and is leaving at the end of the month but will have all that power and then just gets to leave without having to live with the consequences. Sorry for the whining. I am trying to prepare for this special meeting, but I don't know what our governing statutes are.
MarkW18
(Florida)

Posts:382


01/05/2020 7:23 PM  
Posted By DebW3 on 01/05/2020 7:14 PM
KerryL1, thank you for replying to my question. We did call for the special meeting and the board received the petition on the 25th of November but scheduled the meeting for the 7th of January. The petition is to recall the entire board. The President sent out a notice of the special meeting along with a proxy bid for people to use and he names himself as the proxy holder if they submit a proxy. My understanding on that from everything I can find to read is that if he is the proxy holder, regardless of how the member voted, he can change the vote to whatever he wants. It just doesn't seem right that he can do that especially since he is a subject to the petition, oh and a side note to that, he already sold his house and is leaving at the end of the month but will have all that power and then just gets to leave without having to live with the consequences. Sorry for the whining. I am trying to prepare for this special meeting, but I don't know what our governing statutes are.



For the record, proxies have been banned in Arizona.
GenoS
(Florida)

Posts:3495


01/05/2020 10:50 PM  
And a proxy holder can't change anyone's vote. Either you vote or you give someone your proxy. If someone has already voted, their proxy is no good.
MarkW18
(Florida)

Posts:382


01/05/2020 11:55 PM  
Posted By GenoS on 01/05/2020 10:50 PM
And a proxy holder can't change anyone's vote. Either you vote or you give someone your proxy. If someone has already voted, their proxy is no good.



Again, proxies are no longer allowed in Arizona.
TimB4
(Virginia)

Posts:16627


01/06/2020 2:39 AM  
Posted By DebW3 on 01/05/2020 7:14 PM
The President sent out a notice of the special meeting along with a proxy bid for people to use. . .




Here is the issue with that, as Mark pointed out, proxies are not allowed in HOAs or Condominiums unless they are still under declarant (developer) control. They may or may not be allowed in a mobile home park.

Therefore, the questions to Deb are:

1) Are you in an HOA or COA (condominium owners association) or a mobile home park?
2) Is the development still controlled by the declaration?


If the answer to #1 is HOA or COA and the answer to #2 is no, then there are grounds to challenge the vote. Unfortunately, result will be that all proxies will be invalidated and you will likely have to go through the petition all over again with the next meeting sending out absentee ballots instead of proxies.

If the answer to #1 is HOA or COA and the answer to #2 is yes, then proxies are allowed and you need to print off a stack leaving the Presidents name off and start knocking on doors. Make sure yours are dated, as the most recent date wins. Also include the line:

On this date, _________, I revoke all previous proxies and assign my proxy to _____________________.



For more info on proxies, see:


Per AZ §33-1812 Proxies; absentee ballots; definition (applicable to HOAs):

Notwithstanding any provision in the community documents, after termination of the period of declarant control, votes allocated to a unit may not be cast pursuant to a proxy. The association shall provide for votes to be cast in person and by absentee ballot and, in addition, the association may provide for voting by some other form of delivery, including the use of e-mail and fax delivery. Notwithstanding section 10-3708 or the provisions of the community documents, any action taken at an annual, regular or special meeting of the members shall comply with all of the following if absentee ballots or ballots provided by some other form of delivery are used:




Per AZ §33-1250 Voting; proxies; absentee ballots; applicability; definition (applicable to Condominiums):

C. Notwithstanding any provision in the condominium documents, after termination of the period of declarant control, votes allocated to a unit may not be cast pursuant to a proxy. The association shall provide for votes to be cast in person and by absentee ballot and, in addition, the association may provide for voting by some other form of delivery, including the use of e-mail and fax delivery. Notwithstanding section 10-3708 or the provisions of the condominium documents, any action taken at an annual, regular or special meeting of the members shall comply with all of the following if absentee ballots or ballots provided by some other form of delivery are used:


DebW3
(Arizona)

Posts:12


01/06/2020 2:43 AM  
MarkW18, I have read that however it is under ARS 33-18** and this board says they are not governed by ARS 33, and they changed the bylaws last year to allow proxies.
DebW3
(Arizona)

Posts:12


01/06/2020 2:47 AM  
GenoS, Thank you for your reply. I read the difference between an absentee ballot and a proxy is that the absentee ballot allows the member to vote in lieu of a meeting, however, a proxy allows the proxy holder to vote on any issue that is presented at the meeting in any fashion the "proxy holder" wishes.
DebW3
(Arizona)

Posts:12


01/06/2020 2:51 AM  
MarkW18, can you site your source on that? I would love to have a definitive answer before our meeting tomorrow. At this point, the board has been out collecting proxies from neighbors and giving them to the President for counting before the meeting.
TimB4
(Virginia)

Posts:16627


01/06/2020 3:01 AM  
To determine applicability for AZ Planned Community statute, see:

AZ 33-1801 Applicability; exemptions; voluntary election to be subjected to chapter

per that section:

D. A nonprofit corporation or unincorporated association of owners that has the power under recorded covenants to assess members to pay the costs and expenses incurred in the performance of obligations created by recorded covenants for a real estate development that does not qualify as a planned community may elect to subject the nonprofit corporation or unincorporated association of owners to this chapter with the written approval of a majority of all the members. A notice of election to be subject to this chapter shall be recorded by the nonprofit corporation or unincorporated association of owners with the county recorder of the county or counties in which the real estate development is located. The notice is effective as of the date of the recording of the notice. Any such election may be rescinded in the same manner as an election and is effective as of the date of the recording of the notice of rescission.


Therefore, it may have happened, you will need to read your governing documents and county records. All that was needed was a simple majority to have made that happen.



Please note: If your Association is not subject to this statute, then my advice is still applicable. Draft a proxy form and start knocking on doors.
TimB4
(Virginia)

Posts:16627


01/06/2020 3:03 AM  
Basically, you are now in a legal issue to determine if what the Board told you is correct or not.
I suspect it might be but research with county records and advice from a property attorney would be needed (which likely isn't going to happen before the meeting).

Spend your time on gathering proxies.
AugustinD


Posts:2411


01/06/2020 9:37 AM  
Posted By DebW3 on 01/06/2020 2:43 AM
MarkW18, I have read that however it is under ARS 33-18** and this board says they are not governed by ARS 33, and they changed the bylaws last year to allow proxies.
If Deb's community is the one I think it is, then all the signs are that it is not a "planned community" as defined in ARS 33-1802. So it is not subject to Arizona HOA or condo laws. This 2016 Arizona appeals court decision appears to be informative on the point: https://casetext.com/case/sunrise-desert-vistas-prop-owners-assn-inc-v-sallus . What I think may be happening at Deb's HOA is that, per the Articles of Incorporation (interestingly), the corporation has the authority to enforce the covenants and collect dues. The articles also appear to require that directors be insured. As far as proxies are concerned, ARS 10-3724 from Arizona's NonProfit Corporation Act applies. See ARS 10-3724 at https://www.azleg.gov/ars/10/03724.htm


JohnC46
(South Carolina)

Posts:9053


01/06/2020 9:40 AM  
DEB

You are in over your head. Either drop it or get some legal advice.
MarkW18
(Florida)

Posts:382


01/06/2020 9:45 AM  
Posted By DebW3 on 01/06/2020 2:43 AM
MarkW18, I have read that however it is under ARS 33-18** and this board says they are not governed by ARS 33, and they changed the bylaws last year to allow proxies.



There is a rider filed with your Deed of Trust that may determine whether you are a Condo or PUD. Without seeing your governing documents, we are shooting blindly in the dark.
KerryL1
(California)

Posts:6817


01/06/2020 11:30 AM  
Deb wrote: "...they changed the bylaws last year to allow proxies." Do the bylaws, Deb, say that only a board vote is needed to amend the bylaws?
GenoS
(Florida)

Posts:3495


01/06/2020 11:34 AM  
Posted By MarkW18 on 01/05/2020 11:55 PM
Posted By GenoS on 01/05/2020 10:50 PM
And a proxy holder can't change anyone's vote. Either you vote or you give someone your proxy. If someone has already voted, their proxy is no good.



Again, proxies are no longer allowed in Arizona.

I was just pointing out how proxies in general are hard for some people to understand.
EnaP
(California)

Posts:16


01/17/2020 5:03 PM  
We have in our community 135 condos and specific problem. Our Board members never got majority of our votes during the annual election. They don't have record for 2018 and they did not publish anything after the election. For 2019 they got just 25 votes and hired a new Director to fill vacancies. Again they never informed homeowners about the results of election. To be elected they need 70 votes (51%) or at least 34 (25%) Their explanation was that they did not reach quorum, therefore there was no meeting and nothing was published to homeowners. I got however minutes after I requested release of this information. Several days ago they placed minutes online (document from April 2019). Since new management company came in May 2017, our HOA fees were raised from $264 to $550 a month. They intend even to take lien (4 million dollars). All of homeowners are appalled, but cannot do anything. We started petition and collected so far more than 40 signatures for removal of Board, firing of management company and reversal of HOA fees to the level in 2018 ($381). We plan to make one time payment and manage repairs. We need exactly $264 to cover all operating cost - fixed and variable. Everything above is for reserve fund and for repairs.

We called yesterday for special meeting. Agenda is to count votes from petition which is calling for removal of Board and management company, election of interim Board which will act as emergency board until we have regular election held end of April every year. I got from association lawyer today an email and I realized that they plan to stay until new election in April. She also stated that we need to elect new interim Board with secret ballot (as we do with regular Board).

What we need to do to fire Board members and to remove management company so that they cannot prolong decision. Can we remove members at the special meeting and at the same time elect interim Board at that same meeting. Meeting agenda calls for it. Petition asked for removal and people signed it and sent back. Is that enough or if not - what we need to do to be prepared for special meeting?
EnaP
(California)

Posts:16


01/17/2020 5:03 PM  
We have in our community 135 condos and specific problem. Our Board members never got majority of our votes during the annual election. They don't have record for 2018 and they did not publish anything after the election. For 2019 they got just 25 votes and hired a new Director to fill vacancies. Again they never informed homeowners about the results of election. To be elected they need 70 votes (51%) or at least 34 (25%) Their explanation was that they did not reach quorum, therefore there was no meeting and nothing was published to homeowners. I got however minutes after I requested release of this information. Several days ago they placed minutes online (document from April 2019). Since new management company came in May 2017, our HOA fees were raised from $264 to $550 a month. They intend even to take lien (4 million dollars). All of homeowners are appalled, but cannot do anything. We started petition and collected so far more than 40 signatures for removal of Board, firing of management company and reversal of HOA fees to the level in 2018 ($381). We plan to make one time payment and manage repairs. We need exactly $264 to cover all operating cost - fixed and variable. Everything above is for reserve fund and for repairs.

We called yesterday for special meeting. Agenda is to count votes from petition which is calling for removal of Board and management company, election of interim Board which will act as emergency board until we have regular election held end of April every year. I got from association lawyer today an email and I realized that they plan to stay until new election in April. She also stated that we need to elect new interim Board with secret ballot (as we do with regular Board).

What we need to do to fire Board members and to remove management company so that they cannot prolong decision. Can we remove members at the special meeting and at the same time elect interim Board at that same meeting. Meeting agenda calls for it. Petition asked for removal and people signed it and sent back. Is that enough or if not - what we need to do to be prepared for special meeting?
GeorgeS21
(Florida)

Posts:1877


01/17/2020 5:43 PM  
Ena,

Please start a new thread.
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