THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Saturday, April 8, 1995 TAG: 9504060264
SECTION: REAL ESTATE WEEKLY PAGE: 24 EDITION: FINAL
COLUMN: COMMON GROUND
SOURCE: G. ROBERT KIRKLAND and MICHAEL INMAN
LENGTH: Long : 105 lines
Q. A special meeting of our association was called by the president as petitioned by unit owners representing 60 percent of the common element interest. The purposed of the meeting was to adopt a resolution that set forth certain terms and conditions for the board of directors to include a proposed agreement between the Association and a unit owner, pertaining to a common element.
The bylaws list the powers and duties of the board of directors. They state that, ``In addition to the duties imposed by these bylaws or by any resolution of the association that may hereafter be adopted, the board shall on behalf of the association: Do such other things and acts not inconsistent with the Condominium Act or the condominium instruments, which the board of directors may be authorized to do by a resolution of the unit owners association.''
At the beginning of the special meeting, unit owners were told, to their disbelief, that the vote of the association was only advisory and that the board could do whatever it wanted.
The board chose to ignore the direction given by a majority of unit owners when the final agreement was executed. The unit owner who originated the agreement with the association is a member of the board and also voted at the association meeting.
Does the board have a responsibility to follow the direction of a reasonable resolution adopted by a majority of unit owners at a special meeting duly called for that purpose? What recourse do unit owners have if the board proceeds with action contrary to the vote of a majority of unit owners?
A. As is often the case, the key to the answer to your question is in your condominium documents. We often refer to the documents as the ``power source.''
According to your letter your documents state that ``the board shall, on behalf of the association, do such other things and acts not in consistent with the Condominium Act or the condominium Instruments, which the board may be authorized to do by a resolution of the unit owners association.''
Normally, a resolution signed by unit owners representing 60 percent of the common element interest is more than enough to require a special meeting. Assuming that a special meeting is duly called and convened and a decorum is present, if a vote is taken on a properly made motion, then that vote is binding on the board unless the resolution is in conflict with the provisions of the documents.
In your situation, it appears that the board was not entitled to ignore the vote of the unit owners and was bound to carry out the dictates of the resolution passed by the association. You have also said that the unit owner who originated the proposed agreement is a member of the board of directors and voted at the association meeting.
Unless you can find a prohibition to a member voting in a membership meeting on an issue that directly affects him, then he was entitled to vote as a member. Although, had it been a board of directors vote, we believe he is prohibited from voting on any issue in which he has a personal interest by reason of conflict of interest.
We have had not had an opportunity to research Robert's Rules of Order concerning the right of a member to vote under these circumstances, but we are not aware of a prohibition of that nature.
Your question does raise the issue of the problems caused by boards seeking advisory votes from the membership on certain issues and not properly disclosing that the vote is advisory. We have been approached on many occasions by clients indicating they want to go to the membership about a particular issue of widespread significance to the community.
Most of the time, these are issues that are within the province of the board to decide as the governing body of the association. We steadfastly advise boards not to give up their responsibility for decision making by quickly resorting to some referendum because the board is generally best informed group to make decisions, having the necessary background and information available.
Typically, the unit owners are not well informed on such issues and do not have time to become enough informed to make a fully informed decision on how to vote.
Consequently, our advice is to clearly inform the membership that the board is interested in unit owner input on a particular issue, such as whether to make a significant capital expenditure for a new playground or an expansion of the clubhouse, and that there will be an owners' forum prior to the next board meeting at which time owners are invited to express their personal opinions about the issue.
The opinions will be considered by the board in arriving at their decision on the subject.
We cannot emphasize enough that management of the association is vested in the board of directors subject to some requirements of membership votes on certain issues. In the situation presented in this week's question, it appears that there was a petition filed pursuant to the requirements of the bylaws by more than a sufficient percentage of the unit owners to require a unit owners' meeting.
In such an instance, there is no option on the part of the board except to call the meeting and abide by the decision reached at that membership meeting. If the board refuses to do so, then any unit owner can bring a suit seeking an injunction order from the Circuit Court to require that the resolution of the unit owners be carried out.
This is not a matter that could be handled in ``small claims court.'' MEMO: G. Robert Kirkland, president of a Virginia Beach property management
consulting firm, and attorney Michael A. Inman specialize in Virginia
community association issues. Send comments and questions to them at
Real Estate Weekly, 150 W. Brambleton Ave., Norfolk, Va. 23510.
by CNB