John Cummings

Hi, I'm preparing for what is shaping up to be a very contentious annual "OWNERS" meeting at our HOA and want to understand the role of the Moderator, Board and the role of Proxies, if any, for floor motions. Here are my quesions and thanks for any and all responses as usual. We have an outside attorney moderating our annual owners meeting. Once the Board turns the meeting over to the moderator, what is the role of the BOD from that point forward? Are the BOD members at this point just considered regular owners and are they required to follow the Robert's Rules protocol to speak up and make points or can they simply blurt things out when they feel the need arises? One point of contention is the vote to fill the Board of director openings. Our Board election is typically 1 voting article and if there happens to be multiple seats up for grabs with multiple lengths of term then the Board seats would be filled according to the voting totals. The highest vote getters would get the longer terms and the next highest vote getter would get the shorter term. We had a resignation midterm and have an opening for a 1 year seat. In an unprecedented manner, the Board has decided to split the Board election into 2 voting articles. One article for the 2 3-year seats and 1 article for the 1-year seat. Here is my question. The owners are not happy with this and plan to make a floor motion to combine the 2 Board elections into 1 Board election as we always have in the past. Does this motion sound legal? If the assembly of owners votes to pass this motion can the moderator deny the motion? What is the role of proxy votes for floor motions and floor votes? If I'm holding 5 general proxies and the above floor motion is made to change the Board election article, do I get 1 vote or 5? I assume I get 1, but want to verify. Thanks, John Cummings

Thanks Josh!

Thanks, Fair enough. My Board training told me to alway avoid any situation that has an appearance of conflict. I thought this did, but if an neutral observer doesn't see any issues then I am fine. Thanks again John

A situation is unfolding that has many in our association up in arms and crying fowl, so wanted to get some expert opinons. We have an upcoming Boatrd of Directors election in which 3 owners in our association have declared that they are running for the 3 open Board seats. All 3 of these candidates declared they were running before the required deadline. Two of these candidates are current Board members sitting on a 5 member Board. This isn't part of the issue, but just providing the facts. Now to the issue. This certainly has the appearance of conflict and perhaps an abuse of power or maybe just good strategy. The Association Secretary, who is also the Election supervisor who just picked the team of vote counters decided to declare 1 week prior to the meeting that she is running from the floor of the meeting. I understand that everyone is a volunteer, but this certainly has at the very least an appearance of conflict. Full disclosure, I am 1 of the 3 Board candidates that originally declared that I was running for the Board and this move seems like a ploy to prevent me from winning. I say this because of a few other events that I will leave out as not to muddy the waters. Questions Should the Secretary recused herself from being the Election commissioner due to the appearance of a conflict? She personally selected the entire election team of vote counters, then she declared she is running. Is there a proper process for running from the floor? I assume if you remove the above appearance of a conflct that she would be allowed to campaign prior to running from the floor of the meeting. As always, thanks for any replies, this is a great resource for us novices. John

Thanks Josh, Unfortunately this by-law(10-100) was created back in 1986 and I believe by the declarant. I don't think any of the current owners have the tribal knowledge this by-law and could explain the intent. If the intent was that no "new" by-law change proposals could be introduced at the meeting then it probably could have been worded a bit better - oh well. Directed proxies are allowed by law. I have already spoken to a NH Condo attorney on this subject, so the BOD will have to put a process in place to handle them. Thanks John

Thanks, The entire discussion was a good learning experience.

Would it be an accurate summation that my question really boils down to the interpretation of our by-law(10-100) ? Perhaps this doesn't mean what I think it means? 10-100 Amendments to the By-Laws. These By-Laws may be amended at any regular or Special Meeting of the Association, provided a copy of the proposed amendment has been included in the written notice of the meeting. It sounds like most of the responses agree that my association is required to follow Robert's Rules, but Robert's Rule's is low and perhaps lowest on the pecking order. The hierarchy is the NH Condo act, the association by-laws and then Robert's Rules. If this is the case, then I really need to get a legal opinion of the intent of our by-law. Thanks to everyone that responded. John

I'm the original poster and admittedly this conversation is over my head, but I'm reading and taking it all in The association is a "non-profit corporation as listed on the NH Secretary of State website.

Thanks Josh, I'm a newbie when in comes to rules governing an HOA. I'm learning a lot here and on another forum and will steal a few discussions points from another forum. -- Every HOA/COA is a corporation and each state has a statute vesting the Board to make decisions persuant to state law and the HOA/COA's governing documents. The governing documents in my case are the NH Condo act, our association by-laws and the association declaration. NOT Roberts's Rules. -- Roberts rules is not one of our governing documents and must yield to our controling documents if a conflict arises. This sounds exactly how the NH Condo RSA states it. The very first sentence in RSA 356-B:37 states that we must yield to the by-laws and our by-law is also clear that a proposed amendment to a by-law must be included in the written meeting notice which is required by law to be sent 21 days in advance of the meeting. To a layman like myself this seems very clear. Any and ALL proposed amendment to by-laws must be included in the written meeting notice. Unless someone is clairvoyant it would be impossible for "day of meeting" amendments to by-law change proposals to be included in the meeting notice. RSA 356- B37 III. Except as otherwise provided in the bylaws, meetings of the association shall be conducted in accordance with the most recent edition of Roberts' Rules of Order Newly Revised. This is our by-law exception. 10-100 Amendments to the By-Laws. These By-Laws may be amended at any regular or Special Meeting of the Association, provided a copy of the proposed amendment has been included in the written notice of the meeting. Thanks John

Thanks, that has been my plan all along. Just trying to do some homework before meeting the lawyer.

Thanks, The third option you stated is the one that we are going to deploy. That is to void "directed" proxy votes for changed articles. This was the opiton I was trying to avoid as it disenfranchises voters. Still seems odd that a directed proxy vote gets discarded if we have a by-law stating that proposed by-law changes must be sent in a notice to owners 21 days before meeting. I actually hated proxies until I discovered "directed" proxies and I guess I am the cause of this entire mess in our association - lol. . With general proxies I am legally surrendering my vote to another person. If general proxy was my only voting option because I could not attend the meeting then I would chose not to vote. I think the comeback to this will be give your proxy to someone you trust. I'm a brand new owner, so who would that be? Truthfully, I'm not surrendering my vote to anyone. I will vote directed proxy and live with the < 10% of my vote that get discarded. I'm just a layperson, but think the day of meeting amendments are what cause the complication - oh well. If up to me, I would have a deliberative meeting to make amendments and finaliza the voting ballot, then have a voting meeting after. Thanks again John

Thanks! I think the responses here are making a very good case for either allowing proxies or allowing "day of meeting" changes, but not both. The two just seem mutually exclusive. Plus the 'scope' is subjective, so who is going to make that determination. Unfortunately, the NH Condo Act requires meetings to be run by RROO, unless the by-laws state otherwise. The NH Condo act also requires the use of proxies.

So based on this it seems to reason that 'directed proxy" votes should NOT be voided as the article was only changed within reason/scope. It can't be completely re-written to have an entirely new meaning. Thanks

Thanks, Great response. The real issue that I mentioned in another response is how to handle "directed proxy" votes in the case of amendments. RROO doesn't allow proxies unless your state does and NH requires the use of Proxies. Our association wants to void all the "directed proxy" votes if something gets amended at the meeting. So, I guess this becomes, if the amendment stays within the scope of the by-law proposal then perhaps the "directed proxy" vote should NOT be voided. As mentioned, you aren't allowed to completely re-write the proposal, only tweak it within the stated parameters. i couldn't take a proposal to limit the number of dogs to "2" per condo and change that at the meeting to "0 dogs allowed". Thanks John

Thanks, I do have a consultation scheduled with an attorney to discuss this issue. The real issue at hand is with "directed proxies" and I know that Robert's Rules doesn't allow proxies unless required by the law. The NH Condo Act requires proxies. Voters that use a "directed proxy" based on the legally mailed(21 days in advance) agenda articles will have their vote "voided" if the proposed article gets changed at the meeting. Less than 10% of our by-law change proposals get amended at the annual meeting, so it isn't a huge issue and I have no horse in the race. Just wonering what is the correct course of action. Proxies and RROO seem like mutually exclusive entities that should not be joined. Thanks again John

My question is regarding amending a proposed by-law change at the annual meeting and whether or not our by-law(shown below) prevents us from doing day of meeting amendments to proposed by-law changes. I understand that RROO allows amending proposed by-law changes at a meeting, if the criteria is met, just wondering if our by-law makes it illegal to do amendments. The NH Condo law requires our meetings to run following roberts rules. We also have a by-law(10-100) that states by-laws can be amended provided a copy of the proposed amendment has been included in the written agenda/notice of the meeting. The meeting agenda must be sent out 21 days prior to our annual meeting. In Layman's terms it seems that our by-law(shown below) makes it illegal to amended a proposed by-law changes at the meeting because the amended proposal wasn't included in the written notice as required by our by-law. Here is the NH Condo Law followed by our by-law. RSA 356- B37 III. Except as otherwise provided in the bylaws, meetings of the association shall be conducted in accordance with the most recent edition of Roberts' Rules of Order Newly Revised. This is our by-law exception. 10-100 Amendments to the By-Laws. These By-Laws may be amended at any regular or Special Meeting of the Association, provided a copy of the proposed amendment has been included in the written notice of the meeting. Thanks John

Owners are allowed to place petition articles on our annual voting agenda as long as the article meets all the requirements, one of these requirements is gathering the signature of 25 owners in our hoa. The 25 owners signed the petition based on specific wording on the petition article. When this article comes up for discussion, can it be amended or would an amendment invalidate the 25 signatures and thus the petition? For example, I signed a petition containing "X". I didn't not sign a petition containing "X+Y" and probably wouldn't have. This topic has been discussed and nobody really knows the answer. Thanks John Cummings

Thanks Josh! In the meantime the attorney did respond and it is his opinion if it came to it that a court would approve the e-signatures.

Are electronic signaures considered valid? I belong to a seasonal HOA/Campgroup in New Hampshire and am looking to use an online petition service such as change.org to collect signatures for a petition regarding a by-law change. It is off-season and would be difficult to collect paper signatures as owners are dispersed up and down the east coast. I have asked this question to a NH Condo lawyer and posted this question while waiting for a response. Two new laws were added in 2000, the Federal "E-Sign act" and "UETA". I'm not a lawyer and not sure if these laws apply to HOA's. I would hope they do. Plus some details from the New Hampshire Unifor Electronic Transaction act. TITLE XXVII CORPORATIONS, ASSOCIATIONS, AND PROPRIETORS OF COMMON LANDS CHAPTER 294-E UNIFORM ELECTRONIC TRANSACTIONS ACT 294-E:7 Legal Recognition of Electronic Records, Electronic Signatures, and Electronic Contracts. – I. A record or signature may not be denied legal effect or enforceability solely because it is in electronic form. II. A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation. III. If a law requires a record to be in writing, an electronic record satisfies the law. IV. If a law requires a signature, an electronic signature satisfies the law. Thanks John

Yes, exactly and our association needs a lawyers advice. I'm hearing that we can't override this with a more strict association by-law which really has us owners over a barrel. Oh well. Thanks John

Sorry, I mean the NH Condominium Act. Not sure where the term RSA comes from, but it is mentioned in the condo act. I will keep looking. Guess it could just be considered a label or identifier on each condo rule.

Not sure of this question is appropriate for this forum or not, it is regarding Condo RSA and thoughts on a by-law in our association to make it more restrictive. If this isn’t appropriate and someone has a link to another forum I would greatly appreciate it. This is regarding a very controversial NH Condo RSA regarding the votes required to pass an association budget. I will post the full RSA below and summarize in my question. The RSA is written in the negative and states that it requires 2/3 of the association owners to vote “NO” to reject a budget. 2/3s of our association would require 304 NO votes to reject the budget. We rarely have greater than 250 owners that vote in our annual election so rejecting the budget is impossible and in theory the budget could pass without a single YES vote. From my understanding, any association can enhance a Condo RSA with an association specific by-law providing the by-law makes the RSA “more” restrictive. I would like to pass a by-law to make this more restrictive, but some are telling me my proposal is making the RSA less restrictive, but I disagree. My proposal is simple and would be stated in the positive(yes votes) and not the negative(no votes) as the NH RSA is written. It would be something along the lines of this. “The passing of the budget requires >50% YES votes of the total votes cast” Where I am butting heads with folks is in the rewriting the by-law in the positive, in terms of yes votes. They are telling me that my proposal is “less” restrictive than the NH RSA, but it certainly isn’t. My proposal would make it harder to pass a budget and in my mind more restrictive. Currently it is very easy to pass a budget, but my proposal would make it harder and in my mind more restrictive. Am I wrong? Here is the NH RSA: Chapter 356-B - CONDOMINIUM ACT Section 356-B:40-c - Adoption of Budgets and Special Assessments. Universal Citation: NH Rev Stat § 356-B:40-c (2016) 356-B:40-c Adoption of Budgets and Special Assessments. – I. The board of directors, at least annually, shall adopt a proposed budget for the unit owners' association for consideration by the unit owners. Not later than 30 days after adoption of a proposed budget, the board of directors shall provide to all the unit owners a summary of the budget, including any reserves, and a statement of the basis on which any reserves are calculated and funded. Simultaneously, the board shall set a date not less than 10 days or more than 60 days after providing the summary for a meeting of the unit owners to consider ratification of the budget. Unless at that meeting 2/3 of all unit owners or any larger number specified in the declaration reject the budget, the budget is ratified, whether or not a quorum is present. If a proposed budget is rejected, the budget last ratified by the unit owners continues until the unit owners ratify a subsequent budget. Thanks John Cummings

Thanks Josh. I agree Scenario C is similar just needs slight modifications to include participant voting and not only the BOD.

Thanks Josh, I'm really just trying to understand what the new by-law gives us. I would like it to open the door for electronic voting, but if it doesn't that is fine too. You are correct, our annual meeting has always been an in-person meeting and is poorly attended as the summer season has ended and many have closed up their summer homes for the season. With the passage of the new by-law the plan is to conduct BOD meetings once a month over the winter which we have never done in the past. During these meetings the BOD will be voting on motions, but the owners/members of the association will not be voting as there is nothing for them to vote on until the annual meeting. If the BOD votes during these electronic meetings are they opening the door for owners to vote at later meetings? I anticipate next years annual meeting to be broadcast electronically for those that can't attend in-person. I would like the zoom attendees to be able to vote electronically by some means. Thanks John

Thanks Josh, We will certainly need our association attorney to weigh in, but it sounds like we have at least the potential to allow electronic voting if everything else is done correctly and email is not something we want to introduce. My goal would be to hire a service to run the hybrid voting to allow those participating remotely to vote. The main reason for my question has been answered and it appears if everything is done correctly then we did in fact open the door to electronic voting. Thanks