Unreturned ballots counted as yes votes

[Guest Susan LeBlanc]

My HOA Board sent a letter ballot to homeowners regarding a vote to increase homeowners' annual assessment dues. The instructions stated that unreturned ballots would be counted as a yes vote. I questioned the board chair and management company about this and was told the board has the authority to do this. I completely disagree. I was also told that Robert's Rules of Order were not applicable to our by-laws as they were not stated as being so in the by-laws. Additionally, the declaration of covenants for the homeowners association specifically state that the annual assessment may be increased by voting members "who are voting in person or by proxy, at a meeting duly called for this purpose" and further states that, "the association shall not be entitled to:...change the method of determining the obligations, assessments, dues or other charges which may be levied against an owner." So, essentially, neither the by-laws or covenants specifically state a letter ballot can be conducted for this business. 

 

At this point the board plans to proceed with the letter ballot and counting unreturned ballots as yes votes. What is my recourse to challenge these actions?

[Richard Brown]

What is being proposed is absolutely improper, but, unless the board can be convinced that it is improper, your only recourse might be to take them to court.   However, if the board is subservient to the actual owners, you might try to get a special meeting of the homeowners called so that the assembly can overrule the board's proposed action.  Also, unless the bylaws give the board absolute power over the owners, except for elections, the owners can rescind the increase at an owners meeting (general membership meeting).

 

Check your bylaws and state law carefully for the relative powers of the board and the owners.  Also check the bylaws for a reference to a parliamentary authority.   Don't take anyone's word for what the bylaws say.

 

Edited to add:  I don't know if the right to abstain as mentioned on page 407 of RONR would be considered a "fundamental principle of parliamentary law" that cannot be suspended.  Perhaps others will weigh in on that issue. What the board has proposed, in essence, is that the increase will become effective unless a majority of the entire membership votes "no".    Strange, but if there is no adopted parliamentary authority and no controlling provision in state law, such a process may be within the board's power.  

 

It is also within the power of the membership to vote in new board members at the next election. 

 

Edited again to add:  I interpret the covenant on raising assessments as prohibiting this type vote in which failure to return a ballot will be counted as a "yes" vote.

[Guest Guest]

Thank you for the quick response. I will now look at our state law.

[Richard Brown]

Thank you for the quick response. I will now look at our state law.

Stick around for other responses.

[Richard Brown]

Do I understand that this is to be a mail ballot?  If so, this seems to me to violate the covenant requiring that votes to raise assessments be conducted only "at a meeting duly called for this purpose". 

[Guest Susan LeBlanc]

Yes, it is a mail ballot, and yes, that is what the covenants state, "at a meeting"!

[Gary Novosielski]

Sounds like the board is counting on you letting them get away with it.

[Rev Ed]

Abstaining (unreturned ballots) are not votes.  The only time they have the effect of a vote, and only then as a no vote, is if the vote is based on those present at a meeting, or a vote requiring the approval of the entire membership.  Even then it is not a vote.

[Guest Susan LeBlanc]

This is a quote from the HOA board chair: "The process of having a non-returned ballot count as a positive vote has been used by many associations as a valid way of determining the outcome of different issues and is considered a legitimate option for members to cast their vote."

[Dan Honemann]

This is a quote from the HOA board chair: "The process of having a non-returned ballot count as a positive vote has been used by many associations as a valid way of determining the outcome of different issues and is considered a legitimate option for members to cast their vote."

 

This, sadly is true. The trouble is, it's wrong.

[Guest Susan LeBlanc]

What is being proposed is absolutely improper, but, unless the board can be convinced that it is improper, your only recourse might be to take them to court.   However, if the board is subservient to the actual owners, you might try to get a special meeting of the homeowners called so that the assembly can overrule the board's proposed action.  Also, unless the bylaws give the board absolute power over the owners, except for elections, the owners can rescind the increase at an owners meeting (general membership meeting).

 

Check your bylaws and state law carefully for the relative powers of the board and the owners.  Also check the bylaws for a reference to a parliamentary authority.   Don't take anyone's word for what the bylaws say.

 

Edited to add:  I don't know if the right to abstain as mentioned on page 407 of RONR would be considered a "fundamental principle of parliamentary law" that cannot be suspended.  Perhaps others will weigh in on that issue. What the board has proposed, in essence, is that the increase will become effective unless a majority of the entire membership votes "no".    Strange, but if there is no adopted parliamentary authority and no controlling provision in state law, such a process may be within the board's power.  

 

It is also within the power of the membership to vote in new board members at the next election. 

 

Edited again to add:  I interpret the covenant on raising assessments as prohibiting this type vote in which failure to return a ballot will be counted as a "yes" vote.

 

The covenants stipulate that any dues increase has to be voted during a meeting of the homeowners. No provision at all is given for letter ballots.

[Josh Martin]

My HOA Board sent a letter ballot to homeowners regarding a vote to increase homeowners' annual assessment dues. The instructions stated that unreturned ballots would be counted as a yes vote. I questioned the board chair and management company about this and was told the board has the authority to do this. I completely disagree. I was also told that Robert's Rules of Order were not applicable to our by-laws as they were not stated as being so in the by-laws. Additionally, the declaration of covenants for the homeowners association specifically state that the annual assessment may be increased by voting members "who are voting in person or by proxy, at a meeting duly called for this purpose" and further states that, "the association shall not be entitled to:...change the method of determining the obligations, assessments, dues or other charges which may be levied against an owner." So, essentially, neither the by-laws or covenants specifically state a letter ballot can be conducted for this business.

At this point the board plans to proceed with the letter ballot and counting unreturned ballots as yes votes. What is my recourse to challenge these actions?

Based on the facts provided, a mail vote is not in order and, even if it was, it would not be in order to count unreturned ballots as votes in the affirmative. To challenge these actions, I would raise a Point of Order, followed by an Appeal if necessary, at the next meeting of the association. If the association will not meet for some time, then it would be best to call a special meeting for this purpose if possible.

The fact that the organization has not adopted RONR as its parliamentary authority does not, in my opinion, change the answer, but it may make it more difficult to persuade others that the answer is correct.

Edited to add: I don't know if the right to abstain as mentioned on page 407 of RONR would be considered a "fundamental principle of parliamentary law" that cannot be suspended.

I would say that the right to abstain cannot be suspended, and even if it could, I don't believe a subordinate board would have the authority to suspend such a right in a vote by the general membership.

[Gary Novosielski]

This is a quote from the HOA board chair: "The process of having a non-returned ballot count as a positive vote has been used by many associations as a valid way of determining the outcome of different issues and is considered a legitimate option for members to cast their vote."

 

Unfortunately it is true that it has been used by others in the past.   It is not, however, by any stretch of the imagination, to be considered a legitimate option.

 

And if your organization has RONR as its parliamentary authority, it is not in order.  It would certainly be a proper subject for a timely point of order.

 

I'd be interested to hear if anyone would consider it a continuing breach.   

[Kim Goldsworthy]

This is a quote from the HOA board chair:

"The process of having a non-returned ballot

count as a positive vote

has been used by many associations

as a valid way of determining

the outcome of different issues

and is considered a legitimate option

for members to cast their vote."

EE-ow!

 

Tell your HOA board chair this.

 

"You have it backwards."

"One common practice among boards of homeowners associations

is that each abstention is counted as a 'no' vote."

"The state's imposed rules on those bodies incorporated in that state

commonly demand that the vote threshold for adoption is

'a majority of the members present' of its board."

"Thus every board member who abstains  (under that state-imposed rule)

contributes to the negative side (i.e., as a 'no' vote)."

"Never the affirmative side."

"So, to be consistent, and to apply the same rule

to the general membership,

all-who-abstain should be counted in the negative,

if you were to apply the board's imposed rule onto the general membership."

 

That such be sufficient ammuntion:

* RONR says, "To abstain is never counted as an affirmative vote."

* In many states, "To abstain is explicitly counted as a negative vote."

 

That should put the old bouncing ball into the court of your chairman, to reply with a ciation of higher, or better, authority, to try to justify its opposite --

namely, that an abstention is counted toward the affirmative side. --

And he won't be able to find such a rule, I am quite sure.

[Josh Martin]

I'd be interested to hear if anyone would consider it a continuing breach.

The facts provided suggest that the organization's bylaws don't even authorize voting by mail in the first place, so there is no doubt that it is a continuing breach.

If the bylaws had authorized mail-in voting, I'd say it would still be a continuing breach if the number of unreturned ballots improperly counted as votes in the affirmative could have affected the result.

[SLeBlanc]

EE-ow!

 

Tell your HOA board chair this.

 

"You have it backwards."

"One common practice among boards of homeowners associations

is that each abstention is counted as a 'no' vote."

"The state's imposed rules on those bodies incorporated in that state

commonly demand that the vote threshold for adoption is

'a majority of the members present' of its board."

"Thus every board member who abstains  (under that state-imposed rule)

contributes to the negative side (i.e., as a 'no' vote)."

"Never the affirmative side."

"So, to be consistent, and to apply the same rule

to the general membership,

all-who-abstain should be counted in the negative,

if you were to apply the board's imposed rule onto the general membership."

 

That such be sufficient ammuntion:

* RONR says, "To abstain is never counted as an affirmative vote."

* In many states, "To abstain is explicitly counted as a negative vote."

 

That should put the old bouncing ball into the court of your chairman, to reply with a ciation of higher, or better, authority, to try to justify its opposite --

namely, that an abstention is counted toward the affirmative side. --

And he won't be able to find such a rule, I am quite sure.

Thank you and I will give this a try, but I am not hopeful. They are getting advice from a property management company and seem to believe them.  Because our bylaws do not stipulate that RONR be followed, the board is not inclined to follow any accepted parliamentary procedures at all, even when they are knowingly violating the HOA covenants.

[Richard Brown]

Thank you and I will give this a try, but I am not hopeful. They are getting advice from a property management company and seem to believe them.  Because our bylaws do not stipulate that RONR be followed, the board is not inclined to follow any accepted parliamentary procedures at all, even when they are knowingly violating the HOA covenants.

In this case, they aren't just violating Robert's Rules of Order, they are violating the rules in every other commonly recognized parliamentary authority with which I am familiar AND they are violating the clear provisions of the controlling covenants that require the vote to take place at a meeting and also the bylaws... which do not authorize mail ballots. 

[SLeBlanc]

In this case, they aren't just violating Robert's Rules of Order, they are violating the rules in every other commonly recognized parliamentary authority with which I am familiar AND they are violating the clear provisions of the controlling covenants that require the vote to take place at a meeting and also the bylaws... which do not authorize mail ballots. 

I've been digging into Georgia State Law on homeowners association and found a piece on proxies (which are permitted in our covenants and bylaws, and I am wondering if this would address the issue of counting an unreturned ballot as a yes vote: ( The votes pertaining to any lot may, and, in the case of any lot owner not a natural person or persons, shall, be cast pursuant to a proxy or proxies duly executed by or on behalf of the lot owner -O.C.G.A. § 44-3-224? It seems to me that the board is essentially "stuffing the ballot box" as no authority was granted to the board to exercise a proxy vote on behalf of the absent homeowner - I am interpreting this correctly?  Thanks for your help and guidance!  

[Richard Brown]

I'm sorry, but we don't do "legal" here....it is beyond the scope of this forum.  Your question about Ga law needs to be asked of a Georgia attorney.

[SLeBlanc]

I'm sorry, but we don't do "legal" here....it is beyond the scope of this forum.  Your question about Ga law needs to be asked of a Georgia attorney.

Okay - I understand. Thanks everyone for the input!