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 mgaines@meeb.com.
