|
|
This Month's
Expert
|
|
Spring Conference for
Community Association Leaders
Facts on How to "Maintain, Enhance &
Promote"
the Value of Your Asset!
CATS presents its Spring Conference for the Community
Association Industry. Topics are focused on the operations and
management of a Community Association. Helpful tips and methods for
improving your management and decision making. Experts in the
industry will provide sound practical solutions that will work to
help you meet your goals and much, much more......
CLICK HERE FOR REGISTRATION
|
|
|
|
|
OUT
OF TOWN
Q: In
the event a Board Member is "out of town"when a Board
Meeting is held, can that person vote on a motion via E-mail or by
telephone ??? Is this considered to be legal today ????
The Minnesota
Common Interest Ownership Act ("MCIOA"), which governs a
significant number of common interest communities, is silent as to
the manner in which Board members may meet. Accordingly, an
association's governing documents (the Declaration, Bylaws and
Articles of Incorporation) should be consulted to determine whether
they dictate how the Board members may meet. In addition to
consulting an association's governing documents, if the association
is a non-profit corporation, the laws governing board meetings for
non-profit corporations should also be considered.
For non-profit corporations, Minnesota Statutes Section 317A.231,
Subdivision 3 provides that "a director may participate in a
board meeting by means of conference telephone or, if authorized by
the board, by such other means of remote communication, in each
case through which that director, other directors so participating,
and all directors physically present at the meeting may participate
with each other during the meeting." For associations
governed by MCIOA, it is important to note that a quorum is present
if, "[unless] the bylaws provide otherwise, . . . persons
entitled to cast in excess of 50 percent of the votes on that board
are present in person at the beginning of the meeting."
Minn. Stat. § 515B.3-109(b) (emphasis added). This means that
for associations governed by MCIOA, a board meeting cannot be held
in which all members appear and participate by remote
communication. For associations not governed by MCIOA, the laws
governing non-profit corporations provide that participation in a
meeting by remote communication constitutes presence at the
meeting. Minn. Stat. § 317A.231, subd. 2-3. As such, a
meeting could be conducted in which all members appear by remote
communication. However, in this instance, the association
should be mindful of any open meeting requirements and the unit
owners' ability to participate at the meetings.
While participation in a board meeting by remote communication is
permissible under the laws governing non-profit corporations, the
form of the remote communication must allow all of the board
members to participate in the meeting. Holding a meeting by
e-mail will not provide for simultaneous participation, however, a
meeting by telephone would. Therefore, in a situation where
proper notice of the meeting has been provided and a quorum is
present, a board member who participated in a board meeting by
telephone would be able to vote on a motion.
Editor's Note:
I think the question of the use of email to gather information
about the issue to be decided upon is largly misunderstood. The
Board is a volunteer group without much (if any) knowledge of the
myriad of topics they must understand and make decisions. This
takes a much larger amount of time than what is afforded at a once
a month night meeting. The Board must use email to gather
information, ask questions and understand alternatives BEFORE they
can make a solid well thought out decision. Information and
decision making are exclusive actions and events. Decisions cannot
be made via email, but research and information gathering is
encouraged for a well informed Board.
|
Special
Question of the Month
Answered by David Hellmuth, Esq.
Q: We
have a very difficult owner that is threatening to sue the Board
regarding small and petty issues. We are not sure how to address
this and hate to spend lots of legal fees with our attorney. Do we
need to contact our attorney on every issue or should we just wait
for the law suit?
A: Without knowing the actual issues, it is difficult
to advise you as to how to deal with the problem. If the
Board is threatened with a lawsuit, it is a wise practice to, at a
minimum, discuss the matter with a competent attorney. As
this is a unique area of law, make sure that your attorney has
expertise in community association law. The Board may
minimize its' attorneys' fees by seeking oral advice rather than a
formal, written opinion. If you have concerns about the cost
of legal services, or the amount of fees, share these concerns with
your attorney. Feel free to discuss the cost of services with
your attorney and try to reach an agreeable fee, or a cap on your
legal fees.
Rather than "waiting" for a lawsuit, which will likely be
more expensive, be proactive. Have your attorney address the
owner's concerns so that a lawsuit can be avoided. Your
attorney may identify issues that are not being handled properly by
the Board. If this is the case, correct your conduct and
follow the advice you receive. Some Boards feel that owner
issues may be "small and petty." However, despite
these personal feelings, Boards have specific duties and legal
obligations that should be strictly followed. Try to put
yourself in the position of the complaining owner. Try to
imagine how a neutral judge or jury would view the conduct in
question. A good attorney can make a big difference.
Provide full disclosure to your attorney and follow the advice
received.
Editor's Note:
As a side Note: The courts are starting to understand the
problem with owners that constantly are finding fault. See the
following taken from CAI's Law Reporter. For more information go to
National CAI Law Reporter at CAIONLINE.ORG:
Condominium Owner Who Sued Association Without Probable Cause
Liable for Damages
The Meadows Condominium Association, Inc. v. Redman, No. MMXCV075001923S,
Conn. Super. Ct.,July 30, 2009
Assessments/Covenants Enforcement: In an unreported case, a
Connecticut trial court awarded damages to a condominium
association when it prevailed in its suit against a unit owner for
vexatious litigation
|
|
|
|
|
*The comments and answers above are general in
nature. Specific interpretations should be confirmed with the
existing legal counsel.
|
|
|
