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!

On 9/13/2022 at 6:15 AM, Richard Brown said:

Nothing in RONR requires it. What do your bylaws and other rules have to say about this?

Unless your own rules provide otherwise, you simply have someone nominate you from the floor when the floor is open for nominations.. Also, unless your own rules provide otherwise, persons wishing to run may nominate themselves.

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 

On 8/23/2022 at 10:11 AM, Josh Martin said:

There are two main things going on here, which may (or may not) be related.

1.) The meaning of the rule in question in your bylaws - that is, whether the rule prohibits all amendments from the floor whatsoever or whether, consistent with RONR, amendments from the floor which are within the scope of notice are permitted. In my view, I believe it is the latter. (It is possible that applicable law provides otherwise).

2.) How directed proxies concerning bylaw amendments should be handled if the proposed bylaw amendment is amended from the floor. This is a question which will ultimately depend upon what applicable law says regarding proxy votes.

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

 

On 8/22/2022 at 7:21 PM, Atul Kapur said:

The interpretation based on RONR Is that the bylaws amendment can, itself, be amended once the proposal is under consideration (aka "pending").

You are prudent to check with a lawyer experienced in NH Condo Law, but I will be surprised if any superior document conflicts with that.

There is a second question of what to do with the combination of (a) potential amendments to the proposal, and (b) the directed proxies. The answer or recommendation from the lawyer may very well differ from the answer to your first question. 

Much of the prolonged discussion was a digression from your question, so don't let that distract you.

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

On 8/22/2022 at 10:42 AM, Dan Honemann said:

This is the sort of thing that I have cautioned you against. It is simply not true in the state of Maryland, and most likely not true in many other states.

Please refrain from offering such opinions in this forum.

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

On 8/19/2022 at 9:12 PM, Rob Elsman said:

Since the basis of this thread seems to have more to do with the application of state statutes than the common parliamentary law, I think it is a good idea to seek the advise of an attorney who is familiar with the issues raised in this thread.

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

On 8/19/2022 at 8:18 PM, Atul Kapur said:

Well. that is the case with directed proxies; an undirected proxy allows the proxyholder to take amendments and debate into account.

You didn't mention the third option, which is to void directed proxies if there is an amendment. This would be my recommendation, based on the information provided so far.

The chair of the meeting determines whether an amendment to a proposed bylaws amendment is within scope. The members in the meeting may, through a point of order and/or an appeal, overturn the chair's decision. Using the framework as I described above limits the subjectivity.

Not sure why you consider this unfortunate, unless you an Augustinian 😄 or are saying that it is unfortunate that your law mandates the combination of RONR and proxies. In that case, I think that it is this complication that is inherent in the use of directedroxies that is unfortunate.

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

On 8/19/2022 at 6:36 PM, Atul Kapur said:

No. The changes, even if within scope of notice, may have be enough to have changed the proxy-giver's opinion — you can't assume otherwise.

This is why RONR takes a very negative view on combining mail-in votes with live votes on a motion, and the same principle applies to directed proxies.

Let's use Mr. Novosielski's example. If someone is opposed to increasing a fee from $20 to $40 (they feel that such a large increase is not justified) and gives a directed proxy to vote against it, you cannot assume that the proxygiver would still vote against if it were amended to, say, $25.

I agree, but just for that particular motion that was amended, not for every item that is being decided.

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.

On 8/19/2022 at 4:09 PM, Gary Novosielski said:

Amendments are in order which stay within the scope of the notice.  For example, if the proposed amendment was to alter the amount of dues from  $20 to $40, An amendment to change the amount to $30, because it remained within the scope of the proposal would be in order.

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 

On 8/19/2022 at 4:09 PM, Gary Novosielski said:

Nothing in that language prohibits amending the proposed bylaws change when it is up for debate.  It only requires prior notice of the proposed amendment. 

Whether a motion to amend it would be in order depends heavily on what's called the "scope of the notice", which in your case would be the scope indicated in the advance copy. 

Amendments are in order which stay within the scope of the notice.  For example, if the proposed amendment was to alter the amount of dues from  $20 to $40, An amendment to change the amount to $30, because it remained within the scope of the proposal would be in order.

The idea is that if a member received the notice and decided that the proposed increase was not worth showing up to vote against it, amendments would be in order as long as they are not likely to cause him to regret that decision, but raising it to $250 would not be in order.

For a full discussion of bylaws amendment, see RONR 12th ed. §57.

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

On 8/19/2022 at 3:57 PM, Joshua Katz said:

It seems to me that this is a notice requirement, and so amendments within the scope of notice should be acceptable. At least, that's what I think is the best guess at a RONR answer.

But, of course, this is a condo association, and so the question will be how this bylaw interacts with the relevant laws. A question outside the scope of this forum.

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.

     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

1 hour ago, Guest Puzzling said:

I think the original poster refers to the

New Hampshire Unit Ownership of Real Property Act.

See 

https://www.hopb.co/new-hampshire

(From the home owners protection bureau website)

http://www.gencourt.state.nh.us/rsa/html/XXXI/356-B/356-B-40-c.htm

The article

This is very legal, you need a lawyers advice, 

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

15 minutes ago, Richard Brown said:

May I suggest that if you want our help, use terms that we are likely to recognize?  I'm a professional parliamentarian and a retired attorney and I have no idea what a Condo RSA is.  Not even after a very brief Google search.  It's not even mentioned in the statute you quoted from.  Are you by chance referring to some state's statutes, frequently called "Revised Statutes, Annotated" and abbreviated "RSA", as in "Louisiana Revised Statutes" or "Revised Statutes, Annotated?

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.

On 9/21/2020 at 7:31 PM, Josh Martin said:

 

What you seem to want is to also have the ability to hold meetings which are held with some persons present at a central, physical meeting location while also granting other persons the ability to remotely participate and vote in such meetings. It is not clear to me that such meetings are authorized by your bylaws, let alone that the association is required to hold all of its in-person meetings in this manner. So I think that if this is what you want, further amendments to the bylaws may be necessary.

In other words, you may have opened the door, but possibly not as wide as you would like.

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