A lot has changed in the world since the advent of condominiums, and subsequent boom of condominium development in the 70s, 80s
and 90s. However, most condominium documents, including many of those drafted more recently, are still far behind when it comes to methods of communications, voting and holding meetings. I recently reviewed a set of documents that were drafted in the 1990s and they mentioned one of the methods by which notice can be give to unit owners is by telegraph. I can’t imagine many boards or property managers have telegraphs lying around. Since drafters of condominium documents often use the same template over and over again, unfortunately, even documents drafted in the 2000s do not contain provisions one would expect to see for a new condominium.
Notice by email. One of the more common questions we receive is can the board or property manager send notices to the unit owners by email. All documents have a section stating the method by which notice must be given to unit owners for meetings or other matters. Typical language states notice to unit owners shall be given by leaving the notice at the unit or by mailing it to the address of the unit owner. If notice by email is not specifically stated in the documents, then technically, notice by email is not sufficient. Failure to give proper notice can result in a domino effect whereby any action taken subsequent to insufficient notice could be deemed invalid. The solution is to amend the notice section in the documents (usually found in the bylaws) to permit notices to be sent by email. Amendments to the bylaws do require the approval of unit owners. If such an amendment is adopted, the board or property manager should keep a list of the current email addresses for all unit owners.
Electronic Board Meetings and Voting. While the issue of whether boards may meet and vote using electronic means has come up from time to time over the years, the Covid-19 pandemic and related restrictions on gatherings brought greater attention to this issue. Many condominium documents are either vague or require actual in-person meetings and voting by the board. Actions taken by a board which are not in compliance with the strict language of the documents could be subject to challenge. Given that many board discussions take place via email, coupled with the fact board members are volunteers who often have full-time jobs and lives outside of the board, it would be prudent for the board to have the ability to meet via conference call, video conference or other electronic means, and to permit the board to make decisions via electronic means, including email. The reality is many boards are likely already doing this, but perhaps such practice is not permitted by the documents. Therefore, it is advisable to amend the relevant provisions in the condominium documents to permit boards to meet and vote by electronic means.
Electronic Unit Owner Meetings and Voting. Many condominium documents require the annual meeting of the unit owners and elections of board members take place during April, May or June. Due to the Covid-19 restrictions on gatherings, our office received many calls from boards and property managers asking what they should do given the inability to actually hold a unit owner meeting and election. Many clients inquired whether they could hold a virtual ZOOM annual meeting and vote by electronic means. As such technology was not available until recently, unfortunately, very few documents permit unit owners meetings to be held virtually, nor do the documents permit electronic voting. Once again, the solution is to amend the documents.
With respect to voting by electronic means, there are various services available which are set up to handle voting by unit owners over the internet. Security and fraud are of course always a concern; thus, it is important to ensure the service chosen has adequate protections in place. If a unit owner indicates he or she is not comfortable voting via the internet for whatever reason, the board should have paper ballots available.
With respect to holding unit owner meetings by electronic means, this is a bit trickier as unlike electronic voting which can have the alternative of a paper ballot, for meetings the meeting is either in-person or virtual, a hybrid approach likely would not work. During the height of the Covid-19 pandemic, as many boards sought to hold unit owner meetings via ZOOM, several concerns were expressed. What if a unit owner does not have the technology enabling them to participate? In addition, for large condominiums, holding a ZOOM with 100 or more people could be difficult to manage. Therefore, virtual unit owner meetings may not work for all condominium. Before a board considers amending its documents to permit virtual unit owner meetings, it would be advisable to survey the unit owners to determine their comfort level with such an approach and to discuss alternatives if owners are not comfortable.
While boards often propose amendments to documents which could be viewed as controversial (smoking, leasing, pets, etc.), it is unlikely boards will run into much opposition for amendments to permit notices by email, and to permit boards to meet and vote by electronic means.
A member of REBA’s legislation section, Matt Gaines is a Partner in the Condominium Practice Group of the Braintree firm of Marcus Errico Emmer Brooks, P.C. He focuses on the review and drafting of condominium documents, lien enforcement actions, the enforcement of rules and covenants, and fair housing and discrimination matters, including requests for reasonable accommodations/modifications. Matt can be contacted by email at firstname.lastname@example.org.