Virginia HOA Consent and Action w/o a Meeting has to be unanimous? Searched

Hello, I am new inexperienced HOA board member for our community in Aldie, VA. Does anyone know if action outside of a meeting needs to be unanimous, or is it just the written consent to vote on action without a meeting needs to be unanimous but the vote is still majority?

Here is our Bylaws:

Sections:

Article III, Section 7. Action Taken without Meeting. Action required or permitted pursuant to the Act to be taken at a meeting of the Members may be taken without a meeting and without action of the Board if the action is evidenced by written consent describing the action taken, signed by all of the Members entitled to vote on the action and delivered to the Secretary for inclusion in the minutes of the meeting or filing with the Association's records in accordance with Section 13.1-841 of the Act.

Article IV, Section 6. Action Taken Without a Meeting. The Board shall have the right, in the absence of a meeting, to take any action which they could take at a meeting by obtaining the written approval of all of the Directors in accordance with Virginia law. Any action so taken shall have the same effect as though taken at a meeting of the
Board.

Here is the response from the HOA's Lawyer:

"You asked us to confirm the requirement for actin taken outside of a meeting by Greenfield Crossing Homeowners.

While the Association is a property owners association subjec to Property Owners' Association Act, it is also a nonstock corporation subjec to the Viginia Nonstock Corporation Act ("Nonstock Act"). Section 13.1-865 of the Nonstock Act provides that all action outside a board meeting must be taken with the unanimous written consent of the directions, unless the corporation's articles of incorporation provide otherwise. Importantly, the Association's articles of incorporation do not provide an alternative to the unanimous written consent requirement of Section 13.1-8.65. Therefor, all action outside a meeting by the Association's board of directors must be by unanimous written consent."

Here is the section the lawyer mentioned:
We have a non-stock corporation:
https://law.lis.virginia.gov/vacode/title13.1/chapter10/section13.1-865/

I found a similar topic on this forum:
http://www.hoatalk.com/Forum/tabid/55/forumid/1/postid/96977/view/topic/Default.aspx

Kindly help me with my confusion, me and two former board members (retired) think only the consent has to be unanimous but the vote is the same as a regular meeting which is only majority. I just don't see how anything can get done outside of a meeting, its hard to get a unanimous vote. Anyone got any experience with this?

Thank you for the response, our meetings are quarterly, so things get done very slowly, if any, so I was hoping we could get votes on small cost actions (playground damage, re-mulching, website costs) without a meeting, we don't have a lot of amenities other than the playground. We have a property manager who tries but the quotes on little are very high. Since our community has only 107 homes, we've combined available officer positions and remaining are board members.

I still don't interpret the VA law the way you do, it says the written consent to vote on action has to be unanimous (which I agree with) but the vote itself does not. Two other former members also interpret it this way, maybe that's why they quit?
I'm reading it here
"Any actions taken without a meeting shall comply with any voting requirements established in the articles of incorporation or bylaws."

If we stick with unanimous voting outside a meeting, then we can easily get around it by not voting outside a meeting. I know this is a mute point but I want to get stuff done outside a meeting on costs under $1000, lets say. Maybe Tim can help?

Thank you, so your saying it's just a one step process, which states the vote must be unanimous to waive all notice or other meeting requirements? which also counts as a vote for the action?

The other thread says the opposite, I've contacted two lawyers on this. I'll post the responses.

Thankyou John, this is the way I interpret it as well.

Dang, now I'm more confused, when it says written approval of all the directors, I thought that only means that all directors must approve that an action can be voted on by disregarding the meeting requirements but not the actual vote itself. Man, I hope someone can clear this up, either way, I think I'll just have the board stop voting outside of a meeting to be safe.

I must say I'm very surprised that with all of JohnC's experience (4 HOAs, I think) that he thinks only a majority vote is needed to take action without a meeting? Were you kidding us, John?

Maybe, Paul, it's the word "action" that's confusing. Action IS a board decision. Boards vote to take action on x or y. I'm feeling like we have a language issue here, but I don't know what it is.

The reason I mention Tim, Paul, is because of his long experience in his VA HOA.

California got rid of Action Without a Meeting, EXCEPT in emergencies, which is the way it should have been done all along.

When a Board takes "ACTION" without a meeting, they are obligated to at the next regular meeting to say what action was taken and it is supposed to be included in the minutes. The proper procedure would to sign a Board Resolution of the actions taken on that specific date and attach those to the minutes of the next meeting. Because of the failure of Board to follow those simple procedures, California banned them, again, except in "emergency" situations.

Thank you all. Tim, thank you. This settles it then. Vote on action outside of a meeting must be unanimous. Seems kind of undemocratic to me but at the same time we could avoid wasting time trying to get a unanimous vote outside of a meeting, it took a lot of emails and discussions to get our last one, a huge waste of time, I don't want to go through that again. What I'm surprised is that no one on our board knew except the President and even he ignored when I asked if consent and vote to action had to be unanimous. I asked management first, no response from them either.

I'll keep studying.

That was my first suggestion, ignored by all other members. I'm simply too new for them to listen now, although we have 4 members that got elected at the same time as me. I'll keep pushing for more meetings. Same with the management company, request ignored. Will keep pointing out small issues and eventually it might get their attention. For now, its a very slow process.

Although it's always good to know what is in a contract, what Kerry is suggesting simply isn't applicable.
The AWM (action without meeting) was done at the Board level and the MC has nothing to do with it.


Being new, I would advice against that.

There are things you will want to accomplish and will need support.

Instead, if questioned, I would say something along the following:

I think this needs to be discussed in a Board meeting vs. email.

OR

I've been doing some research trying to understand what the Board can and can't do. Isn't discussing this via email contrary to the intent of the open meeting section of the VPOAA (VA Property Owners Act)?

Remember, you can also always vote no which defeats any AWM (even if the majority agree to it). This will force it to come up at the next meeting.

Lets be honest. If Board meetings are taking more than an hour, nobody wants more of them. Of course, this typically results in the meetings that do take place taking longer as there is more to cover. To lessen the length of meetings, you might want to suggest the following:

Officers and Committee Chairs should submit written reports and have them emailed to all board members at least 48 hours prior to the meeting. This allows members to review them and simply ask questions at the meeting (if needed).

Minutes of the previous meeting should be done the same way.

If time is being used for reviewing architectural requests, delegate this authority to a committee.

If time is being used for enforcement issues, again, delegate and only deal with those who won't comply vs. those simply needing a reminder.

If the above is utilized properly, meetings shouldn't take more than an hour (depending on the amount of new business).

Paul,

As you will read in the Community Association Manual I provided a link to, AWMs should not be used to circumvent meetings.

AWMs should be used sparingly and when something can't wait for the next scheduled meeting.
If a lot of discussion is needed, then the item should probably wait.

My Association does use AWMs. This year, we approved five AWM:

1) Storm Damaged Tree removal
2) Award Common Area Rehab Contract - Note, options were discussed at a meeting and this was based on contractors response to questions the Board had.
3) Dead Tree Removal
4) Award Contract for Powerwashing & sealing busstop shelter - again, options discussed at previous meeting
5) Pot Hole Repair Contract

Based on what Paul has written, it seems the MC is pretty loose and also poorly informed. Along with some directors, the MC doesn't seem to want meetings either so I sense they don't wholeheartedly support VA statutes, or maybe not at all.

Yes, per Tim's advice, Paul, keep encouraging meetings for discussions & votes. And I also agree with him that meetings should be kept to a hour or less. This isn't difficult if directors stay on topic and don't verbally wander all over the place.

JohnC. It was Richard of CA who suggested that unanimous consent is very widespread for AWM and i believe he's right. What do your
SC statutes say, or even your HOA bylaws? Willing to share?? This often is in state corporations codes, not just HOA legislation.