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Subject: Board election rules during covid - virtual possible?
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Author Messages
FirstL3
(Illinois)

Posts:40


12/05/2020 5:32 AM  
Our management company advised that we can only hold board elections in physical meeting in Illinois.
Our board meetings are virtual due to Covid and likely to continue this way well into next year.

Just wondering if anyone knows whether the requirement is really true and whether other options are available?
How do others handle this?

ChrisE8


Posts:0


12/05/2020 5:47 AM  
Posted By FirstL3 on 12/05/2020 5:32 AM
Our management company advised that we can only hold board elections in physical meeting in Illinois.
Our board meetings are virtual due to Covid and likely to continue this way well into next year.

Just wondering if anyone knows whether the requirement is really true and whether other options are available?
How do others handle this?





Your management company is wrong.

Your HOA's bylaws and Illinois law might permit meetings to be held by phone or videoconference.

Even if they don't allow that, here's how to hold a valid virtual meeting if your bylaws and Illinois law allow in-person meetings only:

1. Collect enough proxies to have a quorum.

2. Have the board members and anyone who "has" to be at the election (e.g., an inspector of election) meet outside, in a socially-distanced manner.

3. Broadcast that meeting via Zoom. Thus it's a physical meeting and you have proxies that suffice to actually hold a meeting, and people who join via Zoom aren't "there" for purposes of the meeting, but they can submit proxies to be "there".
TimB4
(Virginia)

Posts:17599


12/05/2020 6:07 AM  
Typically, proxies are not allowed for board meetings.
ChrisE8


Posts:0


12/05/2020 6:15 AM  
Posted By TimB4 on 12/05/2020 6:07 AM
Typically, proxies are not allowed for board meetings.




You are correct.

I read the question as "can owner meetings be virtual, to elect directors"?
TimB4
(Virginia)

Posts:17599


12/05/2020 6:23 AM  


From

https://www.idfpr.com/Forms/COVID19/COVID-19%20Guidance%20for%20Condominiums%20and%20Common%20Interest%20Community%20Associations%2005132020.pdf

Q. Under current law, are virtual board meetings acceptable? FAQs2A. The simple answer is “yes,” understanding that proper notice of a meeting, generally 48 hours in advance by mail or email and posting of the notice, must be given. That notice should include specific, detailed instructions on how unit owners can attend those meetings in a virtual manner. Whatever form of electronic means is used, all persons must be able to hear one another and be heard.The CPA provides that the bylaws of each association must provide that board members may participate in and act at any meeting of the board of managers in person, by telephonic means, or by use of any acceptable technological means whereby all persons participating in the meeting can communicate with each other; and that participation constitutes attendance and presence in person at the meeting.The Illinois General Not for Profit Corporation Act applies to condominium and common interest community associations and authorizes both virtual member and director meetings. (805 ILCS 105/107.05(c); 805 ILCS 105/108.15(c)). Therefore, a meeting could occur by conference call, Skype, Zoom, or other acceptable technological means.
AugustinD


Posts:0


12/05/2020 7:46 AM  
This subject has come up a lot here. Nationwide law firms are saying the issue has not been tested in the court but it's clear to the law firms that the pandemic is an unusual situation legally; the risk of in-person anything outside one's household is high; hospitals are at the breaking point and likely already are rationing care.

As for your management company, let me be blunt: Its staff has not done its homework. They are dumb.
AugustinD


Posts:0


12/05/2020 7:46 AM  
Oops; forgot to add:

See TimB4's fine post.
FirstL3
(Illinois)

Posts:40


12/05/2020 9:18 AM  
just to clarify: we had virtual meetings. The mgmt company insists that for board election we can not do virtual. Is there a difference?
LetA
(Nevada)

Posts:1163


12/05/2020 11:52 AM  
You may want to reach out to the secretary of states office for guidance on this. Covid restrictions have put the squeeze on a lot of things like sealed bids that need to be opened during a meeting.
Bids are unsealed during a video conference meeting, I do not see why ballots can't be unsealed during a video conference meeting as well.
ChrisE8


Posts:0


12/05/2020 12:00 PM  
Posted By FirstL3 on 12/05/2020 9:18 AM
just to clarify: we had virtual meetings. The mgmt company insists that for board election we can not do virtual. Is there a difference?




There are two types of meetings.

BOARD MEETINGS, where board members (called directors) meet. These occur frequently throughout the year.

OWNER MEETINGS, where homeowners meet, typically once a year, to elect board members (called directors) and maybe approve an annual budget or something.

Please confirm that you're talking about OWNER MEETINGS.

The management company is wrong. You can certainly have an OWNER MEETING virtually--at least by having a physical meeting with a few people there and a quorum of owners represented by proxy. Your governing documents probably require an OWNER MEETING at least once a year so it's best to do that, even if it takes being creative now.
ChrisE8


Posts:0


12/05/2020 12:02 PM  
See below, in case your HOA is one of the types of entities described in the article--in any event, it's likely that virtual meetings are fine, but even if they aren't just call a physical meeting and get sufficient proxies as described above:

https://www.jdsupra.com/legalnews/virtual-shareholder-and-board-meetings-35274/
FirstL3
(Illinois)

Posts:40


12/05/2020 12:07 PM  
Posted By ChrisE8 on 12/05/2020 12:00 PM
Posted By FirstL3 on 12/05/2020 9:18 AM
just to clarify: we had virtual meetings. The mgmt company insists that for board election we can not do virtual. Is there a difference?




There are two types of meetings.

BOARD MEETINGS, where board members (called directors) meet. These occur frequently throughout the year.

OWNER MEETINGS, where homeowners meet, typically once a year, to elect board members (called directors) and maybe approve an annual budget or something.

Please confirm that you're talking about OWNER MEETINGS.

The management company is wrong. You can certainly have an OWNER MEETING virtually--at least by having a physical meeting with a few people there and a quorum of owners represented by proxy. Your governing documents probably require an OWNER MEETING at least once a year so it's best to do that, even if it takes being creative now.




I am confirming "OWNER MEETINGS". In fact we meet virtually on zoom for budget approval next week. But mgmt company tells us we can't do elections.
KerryL1
(California)

Posts:8018


12/05/2020 12:22 PM  
First, see Tim's citation. Here, instead of Ownrs meetings, it uses the language of "member meetings." This also is something tees called membership meetings. It means owners, not board members. Ask your MC to show you a citation that says your cannot have a virtual member meeting.
ChrisE8


Posts:0


12/05/2020 12:45 PM  
Posted By FirstL3 on 12/05/2020 12:07 PM
Posted By ChrisE8 on 12/05/2020 12:00 PM
Posted By FirstL3 on 12/05/2020 9:18 AM
just to clarify: we had virtual meetings. The mgmt company insists that for board election we can not do virtual. Is there a difference?




There are two types of meetings.

BOARD MEETINGS, where board members (called directors) meet. These occur frequently throughout the year.

OWNER MEETINGS, where homeowners meet, typically once a year, to elect board members (called directors) and maybe approve an annual budget or something.

Please confirm that you're talking about OWNER MEETINGS.

The management company is wrong. You can certainly have an OWNER MEETING virtually--at least by having a physical meeting with a few people there and a quorum of owners represented by proxy. Your governing documents probably require an OWNER MEETING at least once a year so it's best to do that, even if it takes being creative now.




I am confirming "OWNER MEETINGS". In fact we meet virtually on zoom for budget approval next week. But mgmt company tells us we can't do elections.




Management company is unknowledgeable, lazy or lying.

You can certainly do elections- and should.
TimB4
(Virginia)

Posts:17599


12/05/2020 1:05 PM  
Concerning general membership meetings (i.e. the one that typically elects the directors), a simple google search, IL covid HOA elections ,provided the following:

Conducting Safe, Socially Distanced Condo Board Elections A July 2020 article

Using Technology in Community Association Board Meetings & Elections (Illinois) A June 2020 article

Community Association Meetings During the Coronavirus Pandemic (Or Any Other Time of Crisis) A March 2020 article
AugustinD


Posts:0


12/05/2020 2:08 PM  
Posted By FirstL3 on 12/05/2020 12:07 PM
But mgmt company tells us we can't do elections.
-- I concur with the posts by ChrisE8, KerryL1, and TimB4.

-- I think there is a teaching moment here. Do ask your Management company to list (1) the laws the HOA would be breaking by running the election without having an in-person meeting; and (2) the laws the HOA is breaking by not having an annual election. Then ask the Management company to report on which they think is the lesser of the two wrongs, (1) or (2). If the management company does not give the correct answer, then consider finding a new management company. (The correct answer is to hold the annual election without having an in-person meeting. It does the least damage to the HOA corporation in this time of pandemic.)
LetA
(Nevada)

Posts:1163


12/05/2020 3:47 PM  
Posted By AugustinD on 12/05/2020 2:08 PM
Posted By FirstL3 on 12/05/2020 12:07 PM
But mgmt company tells us we can't do elections.
-- I concur with the posts by ChrisE8, KerryL1, and TimB4.

-- I think there is a teaching moment here. Do ask your Management company to list (1) the laws the HOA would be breaking by running the election without having an in-person meeting; and (2) the laws the HOA is breaking by not having an annual election. Then ask the Management company to report on which they think is the lesser of the two wrongs, (1) or (2). If the management company does not give the correct answer, then consider finding a new management company. (The correct answer is to hold the annual election without having an in-person meeting. It does the least damage to the HOA corporation in this time of pandemic.)





UNLESS the governor for Illinois in their emergency declaration made provisions in said declarations for these instances. I believe The NV governor did.
AugustinD


Posts:0


12/05/2020 4:57 PM  
Posted By LetA on 12/05/2020 3:47 PM
UNLESS the governor for Illinois in their emergency declaration made provisions in said declarations for these instances. I believe The NV governor did.
You are welcome to cite a governor who made some sort of decree specific to HOAs/Condos. Right now, all I am aware of are general decrees by governors pertaining to how many people can get together or banning gatherings entirely.

I am not sure the courts have seen any challenges to HOA/condo meetings not being held in-person. Where I am, the courts are not effing around with coronavirus and expect attorneys to cooperate. This includes rejecting certain types of otherwise staturorily-based demands for judge recusals.

My posts here reflects what many law firms have opined as well as common sense in this disaster that is upon the United States and world.

Folks can call their Secretary of State as you suggested, but I am not interested in burdening government agencies more than they already are on such a trivial matter of how to get an election done in a pandemic.
GeorgeS21
(Florida)

Posts:3800


12/05/2020 8:08 PM  
Have the election via mail-in, or online balloting.

No court or judge is going to overturn an election done properly in the time of COVID - but, the same legal system won’t work up a sweat about not having an election in the time of COVUD, either.
JohnC46
(South Carolina)

Posts:10952


12/06/2020 9:42 AM  
Posted By GeorgeS21 on 12/05/2020 8:08 PM
Have the election via mail-in, or online balloting.

No court or judge is going to overturn an election done properly in the time of COVID - but, the same legal system won’t work up a sweat about not having an election in the time of COVUD, either.



While I agree how would one handle it when Nominations From the Floor are allowed?
TimB4
(Virginia)

Posts:17599


12/06/2020 10:34 AM  
If it's done by zoom, you open everyone's mic and ask for nominations.


We use proxies every year and also require nominations from the floor.

Some members allow the proxy representative to vote as they see fit.

Some members direct the proxy representative to vote as directed. When this occurs, those nominated from the floor tend to have less votes. Not an issue for us, as we typically only get nominations from the floor when there aren't enough running. If there aren't enough running, a single vote can get a nominee from the floor elected to the board.
ChrisE8


Posts:0


12/06/2020 11:53 AM  
Posted By AugustinD on 12/05/2020 4:57 PM
Posted By LetA on 12/05/2020 3:47 PM
UNLESS the governor for Illinois in their emergency declaration made provisions in said declarations for these instances. I believe The NV governor did.
You are welcome to cite a governor who made some sort of decree specific to HOAs/Condos. Right now, all I am aware of are general decrees by governors pertaining to how many people can get together or banning gatherings entirely.

I am not sure the courts have seen any challenges to HOA/condo meetings not being held in-person. Where I am, the courts are not effing around with coronavirus and expect attorneys to cooperate. This includes rejecting certain types of otherwise staturorily-based demands for judge recusals.

My posts here reflects what many law firms have opined as well as common sense in this disaster that is upon the United States and world.

Folks can call their Secretary of State as you suggested, but I am not interested in burdening government agencies more than they already are on such a trivial matter of how to get an election done in a pandemic.




Some states have expressly amended the relevant law to allow virtual meetings of corporations and other entities (which might include HOAs) due to the pandemic. Some governors have done so via executive order.
AugustinD


Posts:0


12/06/2020 2:12 PM  
Posted By ChrisE8 on 12/06/2020 11:53 AM
Some states have expressly amended the relevant law to allow virtual meetings of corporations and other entities (which might include HOAs) due to the pandemic. Some governors have done so via executive order.
I am not saying you are wrong. I am saying I would like to see proof. Why? Because this pandemic has put much law in uncharted waters. For example, executive orders cannot normally override statutes. As well, the law on 'abnormal situations' is not well-developed.
KerryL1
(California)

Posts:8018


12/06/2020 2:14 PM  
I'd like to see the actual written citations of these governors' actions, too Chris.
JohnT38
(South Carolina)

Posts:569


12/06/2020 2:21 PM  
Posted By KerryL1 on 12/06/2020 2:14 PM
I'd like to see the actual written citations of these governors' actions, too Chris.




Here's one that may be of interest:

https://lucentlaw.com/governors-order-may-impact-your-washington-hoa-meetings/
JohnC46
(South Carolina)

Posts:10952


12/06/2020 2:36 PM  
My HOA has decided to forgo our Annual Meeting. While technically against our Bylaws, we have not gotten any ankle biting from our owners. Our Bylaws call for the Annual Meeting on or before 04/15.We believe we can get one in before then, but no 2020 meeting is planned. We have decided to let the chips fall where they will with our decision.
GeorgeS21
(Florida)

Posts:3800


12/06/2020 3:11 PM  
JohnC,

In the case of mail in ballots only, it would not be possible.

If online meeting, could be possible.
AugustinD


Posts:0


12/06/2020 3:28 PM  
Posted By JohnT38 on 12/06/2020 2:21 PM
https://lucentlaw.com/governors-order-may-impact-your-washington-hoa-meetings/
Thank you, JohnT38. Nothing like a cold hard Governor's proclamation with a legal argument to support it to infuse the discussion with some meat.
ChrisE8


Posts:0


12/06/2020 4:49 PM  
Posted By KerryL1 on 12/06/2020 2:14 PM
I'd like to see the actual written citations of these governors' actions, too Chris.




Sure:

https://www.clearymawatch.com/2020/04/cuomo-executive-order-gives-new-york-corporations-relief-on-physical-annual-meetings/

NYC co-ops are NY corporations.
MarshallT
(New York)

Posts:151


12/07/2020 5:59 AM  
Hi,

I would ask the management company to cite where they found this rule. You should be able to conduct elections virtually, especially given the current situation. However, your association might have rules that forbid this. There are ways to work around this though.
JohnC46
(South Carolina)

Posts:10952


12/07/2020 9:47 AM  
Posted By GeorgeS21 on 12/06/2020 3:11 PM
JohnC,

In the case of mail in ballots only, it would not be possible.

If online meeting, could be possible.



I agree.
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