Failure to reach a quorum for elections

[Guest Terry Hanchett]

Here's the situation: 

We have a 5 member HOA board. 3 member terms expired 10/15/22 and 1 of the members who term expired next year has resigned before the 10/15 meeting. The annual election meeting was held 10/15 but failed to achieve a quorum of 51% of owners. The second attempt of a meeting quorum is not looking promising and may likely fail. Seeing as how there is nothing in the bi-laws relating to this situation, it falls back to Roberts Rules for guidance.

Question 1: In this emergency situation can the quorum restrictions be relaxed and the votes be counted "as is" in order to refill the open positions so that we may get back to business?

Question 2: Does the last remaining active board member assume all board responsibilities until elections are completed or do the members with expired terms remain officially active?

[Gary Novosielski]

On 10/29/2022 at 1:17 PM, Guest Terry Hanchett said:

Question 1: In this emergency situation can the quorum restrictions be relaxed and the votes be counted "as is" in order to refill the open positions so that we may get back to business?

No. 

On 10/29/2022 at 1:17 PM, Guest Terry Hanchett said:

Question 2: Does the last remaining active board member assume all board responsibilities until elections are completed or do the members with expired terms remain officially active?

That depends on what your bylaws say.  If the terms of board members are for n years "or until their successors are elected", or similar language, then they do remain in office while repeated attempts at holding a proper election are being carried out.  If the bylaws just set a fixed term, then when that term is up, they are no longer in office.

[Guest Terry Hanchett]

On 10/29/2022 at 2:30 PM, Gary Novosielski said:

No. 

That depends on what your bylaws say.  If the terms of board members are for n years "or until their successors are elected", or similar language, then they do remain in office while repeated attempts at holding a proper election are being carried out.  If the bylaws just set a fixed term, then when that term is up, they are no longer in office.

So how long does the board remain paralyzed?? 1 month? 6 months? 1 year? There has to be a safety valve somewhere!!

[Bruce Lages]

The board may not be paralyzed. Adding to what Mr. Novosielski said, you need to look in your HOA bylaws or, preferably with the help of an attorney, into the applicable HOA statutes in your area for language regarding the terms of office for your directors. What you are looking for is wording that says directors are elected for a term of ___ years and/or until their successors are elected. If that language is present, then the answer to your question 2 is that the members with expired terms do, in fact, remain officially active, and will continue that way until you can properly elect new directors to replace them. So you well may still have 4 of your 5 board members still active. (In fact, you may have all 5 members still active if your resigning member's resignation hasn't been officially accepted yet.)

I think it is more likely than not that, because of the nature of HOAs and their legal liabilities, either your bylaws or local applicable statutes do, in fact, have the and/or language that keeps your expired-term directors in office.

I would then look again at your bylaws (as well as the applicable statutes) for their requirements for the election process. Do they require 51% of owners to be physically present at the meeting at which the election will be held? In many HOAs, elections are conducted using mail-in ballots, with a requirement for a response from a certain percentage of the owners. Just be sure you know exactly what is required for the election to be completed.

And if none of this is applicable, i.e., the and/or language doesn't apply in your case, then it will be up to the owners, or at least a dedicated group of them, to do everything possible to rally the troops to get a quorum present at the next meeting. I understand that announcing free food and drink can work wonders to get people out to a meeting!

[Gary Novosielski]

On 10/29/2022 at 2:53 PM, Guest Terry Hanchett said:

So how long does the board remain paralyzed?? 1 month? 6 months? 1 year? There has to be a safety valve somewhere!!

The safety valve is the membership showing up and electing a board.  How long will that take? 1 month? 6 months? 1 year?

[Richard Brown]

Agreeing with Mr. Lages, I think the answers to your predicament may well be found in your bylaws or your HOA declarations or in applicable state law regarding homeowner associations and possibly state law regarding nonprofit corporations.

[Josh Martin]

On 10/29/2022 at 12:17 PM, Guest Terry Hanchett said:

Question 1: In this emergency situation can the quorum restrictions be relaxed and the votes be counted "as is" in order to refill the open positions so that we may get back to business?

No.

If there are persistent problems in achieving a quorum, it may be prudent (when a quorum is finally achieved) to amend the bylaws to lower the quorum requirement.

On 10/29/2022 at 12:17 PM, Guest Terry Hanchett said:

Question 2: Does the last remaining active board member assume all board responsibilities until elections are completed or do the members with expired terms remain officially active?

It depends on what the bylaws provide regarding the term of office.

Further, I would add that it would be prudent to see what the bylaws say regarding filling vacancies - to see if, for instance, they authorize the board to fill vacancies.

On 10/29/2022 at 1:53 PM, Guest Terry Hanchett said:

So how long does the board remain paralyzed?? 1 month? 6 months? 1 year? There has to be a safety valve somewhere!!

Mr. Hanchett, I'm not sure we have yet reached any conclusion that the board is "paralyzed" at all, but in the event that it is, we do not currently have sufficient facts to determine how to resolve the situation. Please provide, for starters, the following information.

• What are the exact words the bylaws use to define the term of office for board members?
• What, if anything, do the bylaws say regarding filling vacancies on the board?
• If the bylaws are silent on the subject of filling vacancies, what do the bylaws say regarding the board's authority generally?
• What do the bylaws provide as the quorum for board meetings?

I also concur with Mr. Lages and Mr. Brown that, given that this society is an HOA, it is very likely there are rules on these matters in applicable law pertaining to HOAs.

[Alicia Percell, PRP]

Adding a citation - see RONR (12th ed.) 25:10, under a heading about rules which CANNOT be suspended:

"Rules protecting absentees cannot be suspended, even by unanimous consent or an actual unanimous vote, because the absentees do not consent to such suspension. For example, the rules requiring the presence of a quorum, restricting business transacted at a special meeting to that mentioned in the call of the meeting, and requiring previous notice of a proposed amendment to the bylaws protect absentees, if there are any, and cannot be suspended when any member is absent."

 

[laser158689]

Following up on the applicable law angle, some states have provisions for these types of situations.  Consult an attorney specializing in HOA law.