Changing Date of Annual (HOA) Mtg

[Rews]

My HOA requires an annual meeting of the members to be held in September each year.  The notification of the meeting date, place, time are required to be provided to the members not less than 10 before the meeting date and no further out than 60 days before; a 50-day window to notify of the meeting that's not less than or within 10 before.

This year the Secretary sent out the notification on August 16 for a September 20 meeting.  In her email notification she requests members respond with their anticipated attendance, much like an RSVP.  

On September 14 (6 days before the scheduled meeting) the Secretary sent out a notification that because it appeared insufficient attendance to achieve a quorum would occur and because 2 of the 25 HOA members were moving that day, the meeting was being "moved" to October 5.

1) Is it possible [for the board] to "move" i.e., change the date of an annual meeting where the members have already been notified?  And do so within less than 10 days before original meeting schedule date?  Wouldn't the original meeting need to be held, attendance taken, and if it is determined a quorum is not achieved then the procedures outlined in the bylaws followed?

2) To have made the notification of the meeting, would the board have been required to approve a resolution or motion to have the specifics of the Sep 20 meeting with this occurring in one of its properly called to order board meetings, and if it does have the authority to to change the date would it have been required to call and hold a special meeting of the board to address this issue?

3) Can the annual meeting be held in a month not expressly stated in the bylaws (September)

Thanks for any input.

 

Edited September 28, 2022 at 05:30 PM by Rews

[Weldon Merritt]

Assuming that you have accurately conveyed what the bylaws require and that there are no other applicable provisions that might change the answer, then:

On 9/28/2022 at 7:33 AM, Rews said:

1) Is it possible [for the board] to "move" i.e., change the date of an annual meeting where the members have already been notified?  And do so within less than 10 days before original meeting schedule date?  Wouldn't the original meeting need to be held, attendance taken, and if it is determined a quorum is not achieved then the procedures outlined in the bylaws followed?

No. It might be possible for the board to issue a new notice, but the new notice would have to fall within the same 60 to 10-day window as the original notice.

On 9/28/2022 at 7:33 AM, Rews said:

2) To have made the notification of the meeting, would the board have been required to approve a resolution or motion to have the specifics of the Sep 20 meeting with this occurring in one of its properly called to order board meetings, and if it does have the authority to to change the date would it have been required to call and hold a special meeting of the board to address this issue?

I'm not 100% sure that I understand your question, but in the absence of a bylaws or statutory provision allowing the board to make a decision outside a regular or properly called special meeting, any decision made outside such a meting would be null and void. But note that some statutes do allow a board to make a decision outside a meeting, if all board members agree (usually in writing). I have no idea whether that would be applicable in this instance.

On 9/28/2022 at 7:33 AM, Rews said:

3) Can the annual meeting be held in a month not expressly stated in the bylaws (September)

That's a bit more complicated. First, if the meeting in convened in September, an adjourned meeting (a continuation of the same meeting) could be scheduled for a date in a later month. This could be done even if there is no quorum at the original meeting. Second, if the meeting is not held in September, that would not necessarily invalidate the actions taken at meeting held in a later month. If an action is required, it usually is better to do it late than not at all.

Others on this forum may disagree with some of my answers, so stand by for further responses.

[Bruce Lages]

Let's take the easy part first - No, it would not be valid to initially schedule the annual meeting for a month other than September. However, it is possible for the annual meeting to be held in another month (October), and you have hinted at the way that can be done. If the meeting is scheduled for a date in September, with proper notice, then on that date if a quorum cannot be obtained, the members who do show up can set the date for an adjourned meeting, which could be in October. The motion is fix the time to which to adjourn (RONR, 12th ed. section 22) and it is one of the few actions that can be taken in the absence of a quorum.

(As an aside, the same action could be taken even if there was a quorum present - for whatever reason the assembly deems sufficient.)

As to whether a properly noticed meeting date can be changed after the notice has been given, I think it is possible to do that. Assuming that your board does have the authority to set the date for the annual meeting, it can only do that a properly called meeting of the board. If the board can properly call a board meeting for a date after the initial notice of the annual meeting has been sent, they could set a new date for the annual meeting, but if, and only if, there would still be sufficient time to satisfy the notice requirement to the membership. I wouldn't recommend that, however, except in the most extreme circumstances because it is likely to cause substantial confusion. Better to go with the adjourned meeting route.

[Weldon Merritt]

I think Mr. Lages and I are basically in agreement. And I concur with his advice that even if the board can validly reschedule the meeting after notice has been issued, it generally would be better to convene it at the originally scheduled time and set an adjourned meeting for the new time. 

[Rews]

Gentlemen (Merritt & Lages),  

Thank you for your quick, thoughtful, and informative replies.  I have chaired boards and governance committees, yet have never encountered a board that is so lax in its governance processes, yet uses the threat of fines, sanctions, and liens on properties, all available in the bylaws, to "police" the HOA members.  This is my first HOA and maybe this casual or uniformed approach is the norm, but it seems risky for the board to not pay attention to their own and Roberts rules (the bylaws expressly state Roberts governing).

I was shocked to receive the revised date and so close to the original that my gut told me the original Sep 20 meeting should have been held, called to order, attendance taken, and if a quorum wasn't present then adjourn after setting the new time, even if that falls outside of September.  The bylaws have procedures for lacking a quorum.  To not have held the meeting and notified of the new date only 6 days before that original date felt like a breach of Roberts and the bylaws.  Furthermore, it is unclear to me if the meeting called for on new date, Oct 5 was probably not properly authorized by a board vote, and thus may make it or anything voted on during it, invalid.

My limited or new experience with this board and certainly the annual meeting is treated more like a party with invitations and RSVP's than a requirement of the governance of the HOA.

 

Thank you again for your informative responses,

Robert

[Gary Novosielski]

If the meeting is held with improper notice that is serious.  The adjourned meeting is definitely the safer way to go.

[Rews]

Thank you for the response.

[George Mervosh]

I think we all agree with Mr. Merritt, Mr. Lages, and Mr. Novosielski that convening it at the originally appointed time in September and setting up an adjourned meeting if a quorum was not present would have been the way to go.  So what should they do now, since that's not possible?

[Gary Novosielski]

On 9/28/2022 at 1:32 PM, George Mervosh said:

I think we all agree with Mr. Merritt, Mr. Lages, and Mr. Novosielski that convening it at the originally appointed time in September and setting up an adjourned meeting if a quorum was not present would have been the way to go.  So what should they do now, since that's not possible?

Absent a working time machine, when going back to do it properly is not possible, it is better to do it wrong than not to do it at all.  But it's important not to do it so badly that everything is null and void.  For that reason, holding a meeting without proper notice should be a non-option.  Holding the meeting with proper notice, though later than the Bylaws require, is less of a breach than holding an improperly called meeting.  So do it as properly as possible under the circumstances.

[Rews]

While everything in the upcoming Oct 5 meeting will be null and void and I cannot attend to discuss at that time (I had the Sep 20 in my schedule), I plan on letting the board make its mistake and then make them aware of the error after the fact, so they can sort it out.

As I told the Secretary and President in an email, I wouldn't make such a big deal out this if the biggest issue the board and membership faced was whether to serve leaded or unleaded eggnog at the annual holiday party, but it the board has authorities that can have serious legal and financial consequences, so following the rules is important.  I've not had a response to anything I've sent other than, Sorry we had to change the meeting date...

Thanks to all for the quick and informative responses!

[Richard Brown]

I think our answers to these questions are going to almost be all over the ball park, with some of us agreeing in part and disagreeing in part with various responses.  I'll try to take them one at a time.  Note: I see that additional responses were posted as I was writing this response.  I am addressing only the initial responses posted by Messrs. Merritt, Lages and Novosielski.

On 9/28/2022 at 8:33 AM, Rews said:

1) Is it possible [for the board] to "move" i.e., change the date of an annual meeting where the members have already been notified?  And do so within less than 10 days before original meeting schedule date?

I am going to disagree somewhat with my friend Weldon Merritt on this point.  I think the board CAN legitimately re-schedule the annual meeting as it did by using the motion to amend something previously adopted.  I'm assuming for this answer that the board does have the authority to set the date, time and place for the annual meeting.  I agree that doing so only six days before the date already set for the meeting is somewhat disturbing and problematic, but I do not think it was out of order for the board to do so provided it did so in the proper manner as permitted by the bylaws and/or state law.  I agree with Mr. Merritt, Mr. Lages and Mr. Novosielski that leaving the meeting set for the original September 20 date and then adjourning it until the October 5 date (or any other appropriate date) if a quorum was not present would have been a perfectly permissible way to handle the problem. 

On 9/28/2022 at 8:33 AM, Rews said:

Wouldn't the original meeting need to be held, attendance taken, and if it is determined a quorum is not achieved then the procedures outlined in the bylaws followed?

As I stated above, that would be a permissible way to handle it, at least according to the rules in RONR.  Whether it would be the best way is, in my opinion, a judgment call to be made by the board after considering all relevant circumstances.   I have no idea what your bylaws provide for meetings without a quorum so I cannot comment on that other than to say that the provisions in your bylaws trump any contrary provisions in RONR.   I also have no idea of travel arrangements that might have to be made in advance by the members.  There are too many unknowns for me to opine on whether it would be better to at least convene the meeting on the original September 20 date.

On 9/28/2022 at 8:33 AM, Rews said:

2) To have made the notification of the meeting, would the board have been required to approve a resolution or motion to have the specifics of the Sep 20 meeting with this occurring in one of its properly called to order board meetings, and if it does have the authority to to change the date would it have been required to call and hold a special meeting of the board to address this issue?

I'm not sure what you mean by the first part of this statement, but I agree with the previous answers by my colleagues that to change the date of the annual meeting the board would have to follow proper procedure, whatever that procedure might be.  It might or might not have to take place in an actual board meeting properly called, etc.  That depends on your bylaws, special rules of order, state law governing homeowner associations and possibly state law governing corporations.  It might well be that such a decision could be made without having an actual meeting in a way permitted by your governing documents and/or state law.

On 9/28/2022 at 8:33 AM, Rews said:

3) Can the annual meeting be held in a month not expressly stated in the bylaws (September)

I know I am disagreeing with the response by at least one of my colleagues, but in my opinion, yes, the annual meeting can be held in a month not expressly stated in the bylaws.  Nothing bad necessarily happens if the annual meeting isn't held when it should have been held. For example, the organization doesn't somehow cease to exist.  The current officers may or may not continue in office, depending on your bylaws and state law.  However, every reasonable attempt should be made to have the meeting within the window prescribed in the bylaws.  But, if for some reason the annual meeting cannot be held or is not held when it is supposed to be held, it may be and should be held as soon as possible after the prescribed date. 

It might technically be out of order for the Board to consider a motion to hold the meeting later than the deadline set in the bylaws when it is still possible to have the meeting within the prescribed window, but if a member proposes to do just that and nobody objects, or if the chair rules the motion out of order but his decision is overruled on appeal, then the motion for the "out of date" meeting might get adopted.  Usually, however, this problem arises when, for whatever reason, the board fails to schedule the annual meeting in a timely manner and than finds it impossible to properly call the meeting within the window prescribed in the bylaws and has no choice but to call it (schedule it) as soon as possible but on a date that is past the date prescribed in the bylaws.  It is far better to have the annual meeting late than to not have it at all.

[Rews]

I'm less concerned about the meeting date being revised to Oct 5 from Sep and that date not being in the stated month in the bylaws.  

My greater issues are; 1) the board probably didn't call itself a meeting to revise the date or make a motion, someone probably just said "we need to change it because no one can make it" and it may have just been a the secretary and president doing so, and 2) revising the date of the original within 6 days of it ignores the spirit of the 10-day notification.  If a board can do that, then what's wrong with cancelling or revising the date 5 min before the meeting?

I know that to answer my questions (thanks to all for your helpful information) it would certainly be helpful for all to have the bylaws, but this is as much about the spirit of the bylaws and Roberts, and a board or its leadership using the bylaws as the rules of the road and then not following any of them.

Thanks 

[Weldon Merritt]

It appears that Mr. Brown agrees with me (and the others) on everything except whether the board my legitimately reschedule the meeting and give less than ten days' notice of the reschedule meeting. I think doing so is more that "problematic." I think it makes the rescheduled meeting an improperly called meeting. What would be the limitation? Could they do it five days before; or one day? Or. as Rews asks, "If a board can do that, then what's wrong with cancelling or revising the date 5 min before the meeting?" There has to be a cutoff, and the bylaws set it at ten days. If the need to reschedule the meeting is discovered less than ten days before the meeting, in my opinion, the only legitimate way to do it (absent some "emergency" provision in the bylaws) is to convene the meeting at the originally scheduled time and then set an adjourned meeting.