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Subject: Motions, Roll Call, Adjournment of HOA members meeting
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JanineR
(Tennessee)

Posts:192


08/10/2021 9:04 AM  
Motions, Roll Call, Adjournment of HOA members meeting:



In our last annual meeting of owners over Zoom, the property manager put all owners on mute, and directors unmuted. A member could not unmute themselves.

The first 8 minutes was chit chat amongst the current directors giving their history.

8 minutes in the treasurer asked the property manager if there was a quorum.

The property manager said "unfortunately we do not have a quorum, we need 74 people, and as all you can see me only have 31 on the meeting. And 16 proxies."

Treasurer: "With that, I make a motion to adjourn this meeting. Do I have a second? {seconded by a director} All the board members in favor signal with an Aye. {Ayed} Motion carried. This annual meeting is officially adjourned. So now we are going to go into presentation everybody!"


Several issues here


a) Assuming we had the ability to unmute (which we didn't), what is the correct way for a member to request a roll call?

- Our bylaws require this on the annual meeting agenda "2) calling of the roll and certification of proxies"

- The management company wrongly stated that quorum requirement was 51% (74) and not 30% (44) according to our Bylaws

- The management company was counting attendance by how many open lines that showed on the zoom call, and not the weight of the vote of that person. For example, "Timmy" has 3 units, so has a weighted attendance of 3. "Brian" has 6 units, so has a weighted attendance of 6. This is very common in our community for an owner to have more than one unit.

- Doing the math, we had a quorum.

What is the correct way for a member to request a roll call during the meeting?


b) Assuming we had the ability to unmute, and assuming there was no quorum. What is the best method for a member to motion to adjourn the meeting to a later date?

- After the board adjourned the meeting, they made no effort to arrange another meeting.

- There were two board vacancies, and three members that submitted their bios for board consideration. None of them were given the opportunity. Instead the Board voted amongst themselves to remain on the board for another year.

-Bylaws read: "d) A quorum at members' meetings shall consist of persons entitled to cast a majority of the votes of the entire membership. If any meeting of the members cannot be organized because a quorum has not attended, the members who are present, either in person or by proxy, may adjourn the meeting for at least (10) days, and adequate notice of the new date shall be given as described in subparagraph (c) of this Paragraph 3.

What is the correct way for members to adjourn the meeting so that it does not get tabled for another year?


We have the opposite of what most Associations experience. We actually meet quorum, and have more people volunteering than expired director terms. It is just not executed correctly. There is a finally another meeting coming up next month, so trying to pre-empt this from being a repeat of last year.




AugustinD


Posts:1695


08/10/2021 10:01 AM  
JanineR,

First: Those bastards. Last year they violated every meaningful bylaw in the book.

Second: In other threads you indicated this is a condominium. I have double checked what you posted against the Tennessee Condo Act.

Third: Are you on the Board?

Fourth: If not on the board, I advise immediately sending a demand letter to the COA's registered agent. The Tennessee Secretary of State site, corporations section, should list the registered agent. The registered agent is usually the COA's manager.

Fifth: Here's a draft letter that maybe will help you on your way:

Dear Board of Directors,

The last annual meeting of the members violated several provisions of the COA Bylaws. Below I list the violations. Please let me know within three days of receipt of this letter whether you intend to comply with the Bylaws this year. If you do not intend to comply with the Bylaws, then I respectfully request you consult with the COA attorney to see if you are proceeding correctly.

Thank you,

Janine R
address
phone
email addie


Violations of the Bylaws at 2020 Annual Meeting of the Members

Per Bylaw ___ and Declaration section ___, each unit has one vote. Certain owners in attendance at the annual meeting own more than one unit. Therefore, at the 2020 annual meeting the manager undercounted the number of units represented.

Per Bylaw ___, quorum is 30% of the membership in attendance in person or by proxy. The manager stated that 31 were present in person and 16 attended by proxy. Even with the manager undercounting the number of units present as I describe above, in 2020 quorum was met. Therefore the 2020 annual meeting should have continued, and the election of directors should have occurred.

Per Bylaw ___, the annual meeting must include a "calling of the roll." For 2020's annual meeting, no roll call was done.

At any meeting of the members conducted pursuant to the Bylaws, members of course have the lawful right to raise points of order. But at the 2020 meeting the manager muted all members, and conducted the meeting of the members as if it were a meeting of the Board, allowing only directors to speak. As a result, members were improperly denied the opportunity to motion for a roll call or raise this as a point of order. Members were improperly denied a chance to object to the motion to adjourn.
JanineR
(Tennessee)

Posts:192


08/10/2021 6:38 PM  
Posted By AugustinD on 08/10/2021 10:01 AM
JanineR,

First: Those bastards. Last year they violated every meaningful bylaw in the book.

Second: In other threads you indicated this is a condominium. I have double checked what you posted against the Tennessee Condo Act.

Third: Are you on the Board?

Fourth: If not on the board, I advise immediately sending a demand letter to the COA's registered agent. The Tennessee Secretary of State site, corporations section, should list the registered agent. The registered agent is usually the COA's manager.

Fifth: Here's a draft letter that maybe will help you on your way:





First: There have been so many violations. Members, not just me, have requested answers.

Second: Correct, condos and Tennessee Horizontal Property Act as well as non-profit corporation statutes

Third: No. But no one can get on the Board. Not one current director was voted in by the members. And from the five directors, only the minutes of one "director" being voted on is available to members.

Fourth: I have previously requested this demand to the Board and copied the management company and certified mail. No response.

Fifth: Thank you for drafting this letter, I am going to send this out in this format certified and copied to more people than last time.

AugustinD


Posts:1695


08/10/2021 7:53 PM  
JanineR, consider reviewing the Tennessee Horiz Property Act, Section 66-27-211:

"In addition to any other remedy provided by the declaration, any right or obligation declared by this part and parts 3-5 of this chapter is enforceable by judicial proceeding. If any person subject to this part and parts 3-5 of this chapter fails to comply with this part and parts 3-5 of this chapter or any provision of the declaration or bylaws, any person or class of persons adversely affected by the failure to comply has a claim for appropriate relief. The court, in an appropriate case involving willful failure to comply with this part and parts 3-5 of this chapter, or any provision of the declaration or bylaws, may award reasonable attorney's fees."

If your latest letter is ignored, then the next step is either to hire an attorney; write another letter but now, threatening suit and citing the above statute section; or both. The letter would speak to the potential costs to the HOA on account of this Board refusing to comply with the Bylaws. In particular, if push comes to shove and this goes to court, the COA would having to pay both for its attorney and possibly your attorney. If the COA attorney is at all competent, then he or she will tell the board to knock the cr-p off and get with it. You with an attorney of your choice would seek injunctive relief. Most likely Tennessee law will require the HOA to be represented by an attorney, because corporate statutes typically require this for non-small claims court actions. (At this time I do not want to look this up and confirm exactly what Tennessee requires of a corporation, by way of representation, when the corporation has a lawsuit filed against it.)
JanineR
(Tennessee)

Posts:192


08/11/2021 11:34 AM  
Thank you for pointing out those paragraphs on the Horizontal Property Act, I will include them.

Members experience so far is that certified letters do not get responded to. Just ignored.

We (many members) have been trying to avoid a law suit, and instead just simply stating the facts, and trust that the Board will act. But it has not worked.

If this annual meeting does not happen, AGAIN, it will probably result in an expensive law suit.

You will see some questions I have about annual meetings coming up on this forum, that might seem simple. But it is an effort to make the annual meeting happen squeaky clean, as there are more than enough volunteers again this year and avoid a law suit. Several members have asked for an independent company to certify attendance, proxies, and votes. It was denied.

Here as some examples of why there are more volunteers than vacancies last year and this year.

*There has been no audit of our association, even though it is required annually. The board 'votes' not to have one.

*Several members have asked to see a few financial documents, consisting of 12 to 16 invoices in total, and have been denied.

*We usually have an annual revenue of about $600k (not audited), but have an insurance claim of nearly $10 million, all of which has been paid to ONE vendor. Members are denied that accounting and what scope was performed.

*Not ONE of the current directors were voted in by members. And out of all the current five "directors" there are only minutes available for one of those meetings. The rest of the decisions were over email so according to the HOA, wrongly, not available for members to review.

*Members are very concerned about the structural integrity of our condos, but are not allowed to see the engineer's reports, if they exist, upon request. Members are not allowed by the board to attend Board Meetings (Tn has not adopted open meetings yet) and written requests do not get a response.


I have to apologize in advance because I will be asking what seem like simple and mundane questions for this upcoming annual meeting. But it could prevent a massive law suit that we probably should have started earlier this year. This annual meeting allows for the new Board to see if D&O insurance and contractor law suits come in to play. And if our structure is safe. And how money has been spent.

I would rather an honest annual meeting so new people where new people are voted, than our community making the news
AugustinD


Posts:1695


08/11/2021 11:50 AM  
-- FWIW I am responding to offer validation and a reality check of your positions regarding the annual meeting. Because I have walked in your shoes on related issues of election irregularities.

-- I am addressing only the annual meeting because I think we both know this is the path to remedying the other concerns.

-- Reality check: Describing an election as being run "squeaky clean" should be redundant. The election violations here are egregious. You folks have an ownership interest. The main purpose of covenants and HOA/corporate statutes is to protect this ownership interest. The courts take the bulk (and maybe all) of your concerns seriously.

-- No apologies are needed. One of the main purposes of this forum is to help prepare folks for meeting with attorneys. Ask away, re the annual meeting.

-- Focus on the annual meeting.

-- About when is the annual meeting? Knowing this will shape my suggestions.

-- Get as many people as you can to sign the letter.

-- Once the letter's deadline passes, post back.

-- If the Board does not conduct the annual meeting per the bylaws, and if you want to give this your time and energy over many months, then I will help you "elevate" your complaint. All in the hopes of getting this board following the law.

-- Can you or your group afford an attorney?
JanineR
(Tennessee)

Posts:192


09/29/2021 3:33 PM  
Update:

Success!

We had it confirmed publicly that quorum was being counted incorrectly. It should be 30% not 51%.

Unlike most HOA/COAs we always have more people volunteer than vacancies, but it is always called as "no quorum" by the management company, so then the last board stays on. If members want to question the quorum, then you have to sue.

Not only that, the owners knocked quorum out of the park! We had about 60% attendance! Double what was needed.
We haven't had a quorum, "allegedly", for at least 7 years.

In addition, members also questioned before the meeting how the roll call can be validated, putting the MC on notice that if things don't add up, then we want to see. I was the only person questioning that last year, and was blown off by the MC and Board. But with other members also sending in emails it helped for this meeting to be on the up and up.

And as a safety net, I sent a polite email that if quorum is not met, then it is it the members that adjourn the meeting to another date, not the board. Last year, despite meeting quorum and having more people volunteer than vacancies, the same board stayed on for another year, and members had no opportunity to reschedule unless we sued. And we were also in the middle of an insurance claim.

It's not often you see success stories, but thank you to the responses of this forum for chipping away at these issues one by one.

The new board has a lot of repairing to do. But it is a start.

AugustinD


Posts:1695


09/29/2021 3:37 PM  
JanineR, it's so nice to see someone's (your) hard work paying off. Great update.

The million dollar question: Does the board now have a majority that you feel will comply with the Bylaws and covenants?
KerryL1
(California)

Posts:8620


09/29/2021 4:34 PM  
Good work! Please keep us posted.

Janine's HOA's success also illustrates how unifying a batch of owners to also express their opinions or be active in other ways can make a huge difference!
JanineR
(Tennessee)

Posts:192


10/01/2021 8:59 AM  
Posted By AugustinD on 09/29/2021 3:37 PM
JanineR, it's so nice to see someone's (your) hard work paying off. Great update.

The million dollar question: Does the board now have a majority that you feel will comply with the Bylaws and covenants?




Well, there were 4 vacancies. There should have been 5 as you have seen from other posts. Sally is still there.
All the 4 that I voted for were elected! Good start.

Less than one day, and Sally has already suggested we bend the bylaws for the organization meeting. Second person was fine with that, and asked what are the repercussions if we don't follow the bylaws. Sally said nothing will happen.

Myself and another director insisted we follow the bylaws. 5th person was silent.

The bylaws are being followed.

Then we started getting emails of background of what is currently going on.
We have some major safety issues here that have been neglected.

I finally got to see the contract that I have been asking to see for over a year! And it is shocking. It was only two paragraphs.... for a $10mil project. Both paragraphs in favour of the contractor.
I asked if it was reviewed by an attorney, and if there are minutes of other directors approving it.
Sally said no minutes because it was done over email, and then sent the email.
Second guy said it made him feel "uncomfortable" that I would ask that since we don't know our 'roles' yet, and for none of us to ask for any information before our first meeting. (He doesn't know about Action without meeting yet). He said that we haven't decided how to keep records yet.

So we haven't even had our first meeting yet.
It looks like two that don't think the Bylaws, statutes etc apply to us. or there is no consequence. The board can do what they want.
And two, including myself that do.
5th has been silent.
So not off to a good start.
AugustinD


Posts:1695


10/01/2021 9:16 AM  
JanineR, thank you for the update. I hope whoever is putting together the agenda for the first board meeting knows what he/she is doing. Anything else you care to share in the future is welcome, at least by me.
KerryL1
(California)

Posts:8620


10/01/2021 10:13 AM  
I'm happy to see your update too, Janine. Can you tell us what is was about the organizational meeting that Sally wanted to bend re: bylaws rules? Was the Organizational Meeting held?

Does your PM attend board meetings??

I don't grasp the point you're trying to make about "action without a meeting."
MaxB4


Posts:1394


10/01/2021 10:40 AM  
Based on experience, in order for the association to operate properly, you'll need a board working together, not always agreeing with one another, a ethical property management company and manager and an ethical attorney.

The PMC and manager should be willing to walk away if they see a board, willingly, operating outside the constraints of the law. A good PMC can set you up on solid footing and keep you moving in the right direction. But, first, you must have someone who knows what the hell they are doing.
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