At JellyBird, we know board members often seek clarity regarding navigating voting during board and annual meetings. With that in mind, we would like to provide a brief outline of typical voting procedures.
Ensuring that essential community association business is continuously completed in a timely manner often depends on successful board elections. This is because most important association business, such as hiring maintenance vendors and collecting assessments, generally must be completed by active board members. So, what should an HOA do to make sure it holds its election correctly?
There are certain rules and processes that must be followed when it comes to HOA voting and elections, especially concerning board meetings and annual meetings. The following information will help you know what to expect when your next board or annual meeting comes around.
Ways Boards and Members can Vote
The way a vote is taken or carried out is largely determined by the type of motion being considered and the state’s law and governing documents.
In general, ways association members and boards may vote will fall within these specific categories:
- Voice votes
- Rising votes
- Show of hands
- Roll call votes
- In-person Ballots (either open or secret)
- Mailed or electronic ballots
- Absentee ballots
- Unanimous consent
If you have any questions or concerns about which method is most relevant to your association’s situation, we encourage you to reach out to your management representative or your governing documents.
Counting Your Votes
There are multiple ways you can organize counting your votes.
While the most common way to organize voting is through majority voting (where at least half the voting membership needs to vote in favor of said motion), there are many other ways to tally a vote that may make sense in a particular context:
- Two-third voting (this is seen most commonly in revisions to the CC&Rs) requires at least 66% of members approval for a motion to pass.
- Cumulative voting (this is one of the rarest ways to count or disperse members’ votes and is usually only seen in votes for candidates) allows each member a number of votes equal to the number of candidates.
- Weighted voting (this type of vote counting is most common in communities under development) is when some members are allowed to cast more votes than other members.
- Plurality voting (this is most commonly seen when voting in a candidate) is used when an item or candidate only needs to receive more votes and any other item or candidate.
While we can make general recommendations on the type of vote tallying you should use most often (we’re fans of the majority voting method for most cases), the way you set up your voting and the method you use to tally will depend on your state legislature, the motion in question, and what your governing documents permit.
Organizing the Votes
How an association determines the final number of votes will likely alter the outcome of an election or a motion.
Generally speaking, we recommend organizing and counting the votes where the total number of votes possible is the total number of votes cast. However, there are also other types of organizing that may make sense, depending on the context, your state legislature, your governing documents, such as:
- Total number of voting members present. It’s possible to give the total number votes possible the same as the number of voting members present at the meeting. This is typically only seen when the governing documents require it.
- Total number of lot owners. This method of organizing votes is similar to counting votes based off the total number of voting members present, but the number of votes possible is the same as the total number of lot owners in the HOA. In other words, if you have 100 homeowners in your community, then you would need 51 votes for a majority.
Proxy Voting
What does it mean to vote by proxy?
Voting by proxy is when someone eligible to vote delegates the ability to vote to someone else at a meeting.
While proxies can allow HOAs with low homeowner attendance to meet quorum at meetings, members who choose to use proxies will not be able to consider discussions related to the motion or candidate in question, floor nominations, or new business introduced at the meeting.
Depending on your state, your governing documents, and your preferences as a board, there are several ways you can limit proxy usage: you can limit what the proxy holder may vote on and you can also set limits on how the proxy holder may vote.
In order to use proxies for voting, we recommend these best practices (unless your governing documents prohibits them):
- Designate the proxy through a signed form.
- Pick someone who is going to attend the meeting.
- Check your state legislature and governing documents for the different legislative requirements for board proxy use and annual meeting proxy use.
As your researching your proxy options, it’s important to check your state legislature for proxy requirements – many states either require or outright forbid proxy usage.
Understanding your voting options and requirements is only one element of HOA business management – it’s also important to understand solid election practices.
What Are Election Rules?
There are certain rules and processes that community associations must follow when they elect new board members. However, each state’s laws will have different requirements for HOA elections, and every community association’s governing documents will have unique processes and rules for its association’s elections.
For instance, some common rules community associations may need to follow for their board elections include:
- sending candidate solicitations to all association members a few weeks before the notice is distributed for the meeting where the election will take place;
- including the date, time, place, and agenda on the notice for the meeting where the election will take place;
- creating and distributing proxies and absentee ballots for members to cast their votes in the election if they cannot attend the meeting in person (if permitted or required by state law);
- holding the membership meeting where the election will take place at a date, time, and/or place required by the governing documents;
- obtaining a quorum of homeowners at the meeting where the election is to be conducted; and
- other such requirements.
If Election Requirements Aren’t Followed
If an election is conducted that does not follow the association’s election requirements, the results of the election can be challenged in court. In other words, board members elected through an election that doesn’t follow state law and governing document requirements are not typically considered authorized board members and cannot legally make decisions for the association.
So, it’s always important to review state law and the association’s governing documents for the specific requirements your association must follow when conducting a board election.
Following Election Rules
A community association’s management company and legal counsel should be consulted to help the HOA ensure it is in compliance with the election rules in its governing documents and in state law.
It is especially important to follow expert guidance if state law seems to conflict with the rules in the governing documents, or if there are conflicts in the election rules contained in different governing documents, such as in the bylaws versus the declaration.
Typically, state law will trump any rules in an association’s governing documents, and an association’s declaration will trump any rules in the bylaws, articles of incorporation, or board resolutions. However, having a professional eye examine the rules will ensure that nothing is overlooked or misinterpreted, as these documents can be quite complex.
If your board has any questions about an upcoming election, don’t hesitate to reach out to your JellyBirdHOA community manager.
Also, visit Boardline Academy. We offer free webinar to be the best HOA Board Member you can be!
