Members Motions at Annual Members Meeting

[Guest Bill]

We are a single family HOA with approximately 400 homeowners (association members). Our Annual Membership Meeting is coming up. Normally about 150 Members attend this meeting. Voting is by proxy/ballot either mailed to our property manager prior to the meeting or delivered ny Members in person at the meeting.

Our BOD has decided that we cannot open our community pool due to potential liability issues since we cannot ensure compliance with CDC/DHEC guidelines for reopening public pools. Our attorney and Property Manager have also advised that we keep the pool closed.

Many of our members are unhappy with that decision and there are rumblings that they will make a motion to reopen the pool at the Annual Meeting.

Regarding our Annual Meeting of Members, our By Laws state "The Members at such annual meeting lect a Board of Directors for the ensuing year and shall have the authority to transact any and all business which may be brought before such meeting." Our By Laws also spell out the Powers of the Board of Directors, one of which states - "The Board of Directors shall have the power to adopt and publish rules and regulations governing the use of the Common Property and facilities, and the personal conduct of the Members and their guests thereon, and to establish penalties for the infraction thereof".

Should a Member make such a motion, would it be a proper motion considering the Power of the Board regarding the Common Property. How would the Chair of the Meeting rule on such a motion?

 

[Richard Brown]

18 minutes ago, Guest Bill said:

Should a Member make such a motion, would it be a proper motion considering the Power of the Board regarding the Common Property. How would the Chair of the Meeting rule on such a motion?

It is ultimately up to your organization to interpret its own bylaws, but this provision does not appear to grant the board the exclusive authority to adopt rules and regulations regarding the use of common areas.  This appears to me to be something within the purview of both the membership and the board, in which case the board is subservient to the membership.  In order for the board to have exclusive authority in that area, the bylaws would  need to so state.

Edited to add:  See pages 482-483 for more information.  You might also take note of this  language from page 483:  "Except in matters placed by the bylaws exclusively under the control of the board, the society's assembly can give the board instructions which it must carry out, and can rescind or amend any action of the board if it is not too late (see 35). "

Edited May 31, 2020 at 03:52 AM by Richard Brown
Addded last paragraph

[Atul Kapur]

There are undoubtedly one or more laws that apply to your HOA, and they would supersede RONR. You should also check them, or check with a lawyer, to see if and how they answer your question. 

[Richard Brown]

I agree with Dr. Kapur's advice to check the HOA laws in your state.  My response was based on RONR, but any applicable state laws would indeed supersede RONR. Most states... maybe all of them... have laws pertaining to Homeowner type associations.

[Guest Bill]

Richard Brown - Thank you for your response. Based on the response I looked further into our documents. In the Common Property section of our Declaration of Covenants, Restrictions and Easements, I find the following:

"The rights and privileges conferred in this Section shall be subject to the right, and where applicable, the obligation, of the Association acting through the Board to promulgate rules and regulations relating to the use, operation and maintenance of the Common Property".  

This would seem to reinforce your response. In other words, the membership could vote to place the association in jeopardy of defending a liability suit brought by someone who claims to have contracted coronavirus while at our pool. While the likelihood of that type of suit succeeding is slim, the association would have to pay the costs to defend since liability insurances do not cover pandemics.

Now my question is about the vote on a motion to open the pool: The voting provisions in our documents allow one vote for each lot owner (about 400 lots). Other than requiring 2/3 vote of the total votes in the association to amend the Declaration or By Laws, there is no other provision regarding the number or percentage of votes needed to take any type of action. At our annual meeting, members vote to elect a Board of Directors and on proposed amendments to our documents by proxy/ballot mailed to each member 30 days prior to the meeting. Members either mail their proxy/ballot to our management company or deliver them to the meeting personally. Normally, about 150 lot owners attend our annual meetings.

Assuming the motion to open the pool is made, how many votes are required to pass it - the majority of members present?  

 

Thank you

[Richard Brown]

39 minutes ago, Guest Bill said:

Assuming the motion to open the pool is made, how many votes are required to pass it - the majority of members present?

Unless your bylaws, other rules or state law provide otherwise, ordinary main motions (which this seems to be) require only a regular majority vote.  A majority vote is a majority of the votes actually cast, excluding blanks and abstentions.  It is based on the votes actually cast, not on the number of members present or the total membership. Blank ballots and abstentions are ignored and are not counted.

Edited to add:  If the Board has already adopted a motion NOT to open the pool (or to keep it closed), then the vote required would be the vote required to rescind or amend something previously adopted, since the membership is rescinding or amending something adopted by the board.  The vote requirement is a regular majority vote if previous notice of the motion is given.  If previous notice is not given, the vote required is a two-thirds vote OR the vote of a majority of the entire membership, whichever can be obtained.

Edited May 31, 2020 at 04:12 PM by Richard Brown
Added last paragraph

[Guest Zev]

18 hours ago, Richard Brown said:

Edited to add:  See pages 482-483 for more information.  You might also take note of this  language from page 483:  "Except in matters placed by the bylaws exclusively under the control of the board, the society's assembly can give the board instructions which it must carry out, and can rescind or amend any action of the board if it is not too late (see 35). "

Then you also say...

5 hours ago, Richard Brown said:

Edited to add:  If the Board has already adopted a motion NOT to open the pool (or to keep it closed), then the vote required would be the vote required to rescind or amend something previously adopted, since the membership is rescinding or amending something adopted by the board.  The vote requirement is a regular majority vote if previous notice of the motion is given.  If previous notice is not given, the vote required is a two-thirds vote OR the vote of a majority of the entire membership, whichever can be obtained.

The trouble I am having is with the use of the word "rescind" and "rescinding."

I can understand that if a body adopts something and subsequently decides to annul or modify that action it must then follow the rules as established for the motion to Rescind or Amend Something Previously Adopted. However, in this case the motion that was adopted was adopted by the board and not the assembly and it is not the board that is rescinding its previous action but it is the superior assembly that is countermanding the subordinate board's action.

Can you see what I am trying to get at? I would have been less worried if on page 483 the words "rescind or amend" had been "countermand or modify." As it is written it may convey the impression that the regular rules for Rescind or Amend Something Previously Adopted must be followed. I am having trouble believing that this is the case because if this were true then any action taken by a subordinate group, in this case the board, could only be "rescinded" by a vote of two-thirds by the superior group, in this case the assembly. In other words, a motion adopted by the board would be the exact same thing as the same motion having been adopted by its superior body. I do not believe this is the case. The board is free to adopt any measure within its powers and the superior assembly is also within its powers to countermand any measure without notice and by way of a majority vote.

Naturally, if any of you can find a detail I have overlooked, I will stand, happily of course, corrected.

[Richard Brown]

14 minutes ago, Guest Zev said:

However, in this case the motion that was adopted was adopted by the board and not the assembly and it is not the board that is rescinding its previous action but it is the superior assembly that is countermanding the subordinate board's action.

The same principle applies. Since the board also has the authority to adopt a motion dealing with the issue and did in fact do so, the membership is in essence rescinding  or amending the action of the board. Therefore, the regular vote requirements and thresholds for rescinding  or amending something previously adopted are applicable. 

If the board had not already adopted a motion regarding closing the pool, the membership could adopt a motion with a regular majority vote.

Edited to add:  See page 306 lines 31-34 which read as follows:  "The same vote is required for the assembly to rescind or amend an action taken by subordinate bodies, such as some executive boards, empowered to act on behalf of the assembly".

Edited May 31, 2020 at 10:39 PM by Richard Brown
Added last paragraph

[Guest Zev]

14 minutes ago, Richard Brown said:

Edited to add:  See page 306 lines 31-34 which read as follows:  "The same vote is required for the assembly to rescind or amend an action taken by subordinate bodies, such as some executive boards, empowered to act on behalf of the assembly".

And that was the detail I missed. Thank you. Happily I must add.

[Nathan Zook]

Hmm...

"The rights and privileges conferred in this Section shall be subject to the right, and where applicable, the obligation, of the Association acting through the Board to promulgate rules and regulations relating to the use, operation and maintenance of the Common Property".  

 

I'm wondering about the phrase, "the Association acting through the Board".  Does this imply that the assembly retains the right to instruct the board?  Could it not mean that the the Association elects the Board, and that thenceforth, the actions of the Board are the actions of the Assembly?

 

I'm not happy with the ambiguity here.