Get 1 year of free community web site hosting from Community123.com!
Tuesday, September 29, 2020











HOATalk is a free service of Community123.com:

Easy to use website tools to help your board
Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.
Subject: Vote by email
Prev Next
Please login to post a reply (click Member Login on the menu).
Author Messages
BobC20
(California)

Posts:7


02/08/2020 8:16 AM  
We have a small association less then 40. Our next annual meeting is not for a couple months. We have a pressing issue that needs to be voted on. Is an email vote acceptable?
MarkW18


Posts:1290


02/08/2020 9:23 AM  
Pressing issue for whom? Does it require a membership vote by secret ballot?
KerryL1
(California)

Posts:7516


02/08/2020 9:34 AM  
What is this "pressing issue" that the board can't vote on it? With MarkW, are you sure it requires a vote of the Members (owners)?

Meanwhile, I don't think members (Owners) can vote by email in CA--I honestly haven't checked on that lately.
DaveP8
(Oklahoma)

Posts:24


02/08/2020 9:59 AM  
There are several online voting web sites you could use. Very affordable. Here's one: https://electionbuddy.com/
BobC20
(California)

Posts:7


02/08/2020 10:07 AM  
It involves settling a potential lawsuit to avoid the much more costly defense. We do not employ an attorney but have been advised by an attorney that this is best course of action.
AugustinD


Posts:3931


02/08/2020 10:36 AM  
Posted By BobC20 on 02/08/2020 8:16 AM
We have a small association less then 40. Our next annual meeting is not for a couple months. We have a pressing issue that needs to be voted on. Is an email vote acceptable?
-- What do your Bylaws say about meetings of the membership and votes of the membership?

-- Based on the following, I do not recommend voting by email or any other way that the following two sites say is unacceptable:
https://www.davis-stirling.com/HOME/E-Ballots
and
https://www.davis-stirling.com/HOME/Statutes/Civil-Code-5100#axzz2CR2ljirY

KerryL1
(California)

Posts:7516


02/08/2020 10:57 AM  
When our HOA settled a lawsuit several years ago, the Board voted on it. Why do you think the Owners must vote on this? With Augustin, is there something in your bylaws or CC&Rs that say Owners must vote on this??

If an attorney is sort of advising you, doesn't s/he know if owners must vote on this?

Why must this be acted on so quickly? Are you on the board, Bob? I feel like we're missing a lot of details.

BobC20
(California)

Posts:7


02/08/2020 11:29 AM  
Thanks for your input. I will reach out an attorney to determine if this needs a vote. The urgency was a date given by the threatened lawsuit.
MarkW18


Posts:1290


02/08/2020 11:31 AM  
We had a provision in our CCRs where the membership was required to vote prior to actions costing over a certain amount of money. Does yours have similar language?

4.1.13 The Association has the right and power to prosecute or defend, under the name of the Association, any action affecting or relating to the Project or the personal property thereon, or any action in which all of the Owners have an interest in the subject matter of the action.
Notwithstanding the foregoing, without the prior vote or written assent of a majority of the voting power of the Association, the Board may not institute any legal proceeding (including any arbitration or judicial reference proceeding) against any person or entity the cost of which could
reasonably be expected to exceed Two Thousand Five Hundred Dollars ($2,500.00). In estimating the costs, the Board shall include all normal and customary court costs and attorneys' fees without regard to the possibility of recovering costs and fees if the Association were to prevail.
AugustinD


Posts:3931


02/08/2020 11:34 AM  
Posted By BobC20 on 02/08/2020 10:07 AM
It involves settling a potential lawsuit to avoid the much more costly defense. We do not employ an attorney but have been advised by an attorney that this is best course of action.
Bob, I hear you that your HOA's attorney thusly advised the Board. But like Kerry, I am a little surprised. For the membership to vote on this intelligently would require having pretty much all the information the board has. But the information the board has most likely is privileged, meaning it should not be shared with others and should especially not be shared with the party that is suing the HOA. Yet the party that is suing the HOA is a member and so is entitled to any information the other members receive.

Legally I think the best course of action is for the board to get an attorney that actually agrees to represent the HOA (even if it is only on this one issue); have the attorney examine the threat by the member; get the attorney's advice (protected by attorney-client privilege); and then proceed. Doing anything else is flying blind. In my opinion, flying blind here would be a violation of fiduciary duty, possibly a huge one.

If the OP shares more details, even of a general nature, about the threat from this OP, then I believe this forum may very well be able to help this board prepare for a meeting with an attorney.
AugustinD


Posts:3931


02/08/2020 11:36 AM  
Also, does the board have what is called a "demand letter" from the member threatening to sue?

Has the HOA insurer been notified? Often the terms of a HOA's insurance contract give the HOA access to an attorney (paid for by the insurer) immediately. Also some insurance contracts have a "hammer clause," meaning the decision to settle is left entirely to the insurance company.
KerryL1
(California)

Posts:7516


02/08/2020 1:40 PM  
Along with Augustin's points, BobC, how can this attorney you reached out to advise you without reading your bylaws and maybe your CC&Rs on this topic. See MarkW's post on this.

CA has a lot of statutes about HOAs and unless this attorney is an HOA attorney, S/he probably wouldn't be of much help.

ARE you on the board, Bob? I don't think you're purposely being evasive, BUT you seem to know so little about your HOA's governing documents that you cannot or will not answer our questions.
JohnC46
(South Carolina)

Posts:9900


02/08/2020 2:24 PM  
An aside. My HOA has two attorneys. One is the Attorney of Record for the association/corporation. His law firm is one of the biggest HOA law firms in SC. We are chicken feed business to him. No BOD member has had any contact with him, other than me on a phone consult, in 5 years. His name does draw fear when it comes to HOA's and for this reason we would not drop him as our Attorney of Record but but if he walked into an annual meeting, no one would know who he is.

The other is a highly respected, local, and general law attorney. We have been using him for debt collection (overdue dues) but we will be using him more for other things. Fortunately we do not have any legal issues....yet..LOL

Bottom line is an association might well have more than one attorney for various issues.
Please login to post a reply (click Member Login on the menu).



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.
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