It's very easy to invalidate an election by not following every rule to a T. Keep an eye out for these common mistakes condo and homeowners associations make when conducting elections.
HOA Election Mistake 1: Not following your own rules. "The most common mistake is simply not following the provisions of your own governing documents," says Robert Galvin, a partner at Davis, Malm & D'Agostine PC in Boston who specializes in representing condos and co-ops. "They'll usually provide how much notice of meetings must be given to unit owners, what the notice should say, how much of a quorum there should be, and the votes trustees [in Massachusetts, board members are called "trustees"] must receive to be elected. For instance, in many cases, the documents will provide that trustees who are elected are those with the highest votes, but they have to get more than 50 percent. Others say trustees need only a plurality to be elected."
Your governing documents may also require the use of a nominating committee. "Some governing documents require a committee to come up with names for candidates," explains Matthew A. Drewes, a partner at Thomsen & Nybeck PA in Edina, Minn., who represents associations. "Yet the association fails to employ the committee. I don't see that very much, but one of my colleagues has mentioned that as an issue."
HOA Election Mistake 2: Failing to plan by sending proxies. "A big mistake is that folks forget to send out proxy forms before the meeting," says Amy H. Bray, a partner at Andersen, Tate & Carr PC in Lawrenceville, Ga., who represents condo and homeowners associations. "Then they find themselves at the meeting unable to proceed because they don't have enough attendance and don't have extra proxies, so they can't elect a board. They have to start knocking on doors."
Bray recommends sending out proxy forms with the notice of the meeting. "If you happen to see your neighbors before the meeting," she suggests, "follow up about the meeting and ask, 'Why don't you sign the proxy for the meeting now?'" She also suggests printing extra proxies to bring to the meeting so that if you do have to knock on doors, you have forms ready for owners to sign.
Include as much information in proxies as possible. "When I prepare a proxy, I'll usually put down the slate of officers who are running and also provide space for write-in candidates," says Galvin. "It's also important to say in the proxy that you can vote for only so many people, and if you vote for more, the proxy is invalid. We'll also usually identify whom the proxy will be, but we'll also state in the proxy that if owners want to appoint someone else, they just have to cross out the name we've included and write in anybody they want as long as that proxy actually attends the meeting."
HOA Election Mistake 3: Forgetting to check for a quorum. "One thing that gets skimmed over a lot is that people don't check the quorum to ensure they have the right accounting to know how many people to proceed," says Bray. "In Georgia, some governing documents say that to hold a meeting, you need as little as 10-25 percent attendance for a quorum. It's not necessarily a large number to hold a membership meeting to elect directors. But it's the first thing you should think of when you walk into that meeting to decide whether to go forward."
Here's a quick example of counting for a quorum. You have 100 units. Your governing documents require a majority to be present to meet a quorum, so 51 unit owners must be present to comprise a quorum. If your governing documents require a simple majority of the quorum for a director to get elected, then a director would need 26 votes.
HOA Election Mistake 4: Failing to document your quorum. "People also don't do sign-ins to establish they had a quorum," says Bray. "You can't just say people were there. You have to have some sort of sign-in or other record to go forward with the election."
HOA Election Mistake 5: Allowing anyone and everyone to vote. "Keep a roster of who can vote," says Drewes. "The number of votes per unit should be based on the owners of that unit nominating someone to cast a vote on their behalf. So if a couple lives in a unit, they don't get two votes. I've had associations that have allowed unit owners to double vote. I've also had associations that, when I've asked how they've conducted elections in the past, they've said, 'Whoever shows up, we let them vote.'"
HOA Election Mistake 6: Miscounting votes. This is easy to mess up, so be careful. "I've seen people miscount votes," says Duane McPherson, division president at RealManage, a San Rafael, Calif., association management firm that oversees properties in Arizona, California, Colorado, Florida, Louisiana, Nevada, and Texas. "When they go back and count them again, it's three to four votes different."
And whatever you do, if your governing documents allow mail-in votes, bring all the sealed envelopes to the meeting. "Opening envelopes prior to the meeting is a definite mistake, but I've seen that happen," says McPherson. "It allows for the perception that there was some mishandling of the ballots. Even though it takes forever to open up hundreds of ballots if you're in a large association, you need to take that time."
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