Confused about whether your association can hold virtual meetings and allow owners to vote electronically? You’re not alone. The Massachusetts Legislature last year amended the state’s condominium statute to specifically authorize both virtual meetings and electronic voting. That was a good thing. Before the statutory change, associations could hold virtual meetings and allow electronic voting only if their documents provided that authority.

But the wording of the amendment (Section 24 of MGL c. 183A) was somewhat unfortunate. It said owners could vote by mail or electronically on any matter “provided that a quorum shall be present for the vote.”

The use of the word “present” instead of “participating” is confusing, to say the least as it raised the issue of whether voting still had to take place at an actual meeting (virtually or in person). No wonder boards are confused. How should associations deal with the confusion?

Applying the Occam’s razor principle (the simplest solution is always best), associations can conduct board meetings and annual meetings of owners virtually - using Zoom, for example – by incorporating the same basic procedures used for in-person meetings, which means they have to create mechanisms for establishing a quorum and for allowing owners to vote. There are many ways to do this. For example:

To meet the quorum requirement: Count the number of owners who log in and the directed proxies submitted by owners who are not attending.
For voting: Owners attending the meeting might vote by using Zoom’s thumbs up icon. This makes the voting public, which might not be acceptable to everyone. Alternatively, owners attending the virtual meeting could submit their ballots via e-mail. The ballots could be scanned and counted during the meeting or after it.

The essential point is that boards should decide in advance how they will conduct virtual meetings, distribute the procedures they plan to use to owners and address any concerns before the meeting. Boards don’t want to be deciding during a meeting how to establish a quorum or how owners are going to cast their votes.

There is no single election blueprint that is “right” for everyone; boards should establish the procedures that work best for their association. But the protocols they adopt should be workable, transparent to owners and understood by them. Boards should also make sure the procedures they establish comply with the association’s governing documents. The procedures for an annual meeting of unit owners should, at a minimum, describe:

Who is eligible to vote
Who is eligible to run for office
The process for nominating candidates
How notice of the election will be provided – and how much in advance it should be sent to owners.
The quorum requirement for the meeting and the vote required to elect candidates.
What happens is owners fail to elect members to the board.

Boards should set firm deadlines for accepting nominations and should strictly enforce them. The letters requesting nominations should specify the date and time after which nominations will not be accepted. The problem with accepting late nominations is, they may not be included in the proxy forms owners receive before the meeting. This invites challenges to the election results. It also annoys candidates who have submitted their forms on time.

The amendment allowing virtual meetings does not specifically authorize mail-in ballots for voting without a meeting. For this reason, we recommend using directed proxies, which most governing documents authorize. Boards that want to use mail-in ballots without a meeting might be able to adopt a rule authorizing them, but it is best to ask owners to amend the governing documents instead if possible.

There is no magic bullet for dealing with chronic quorum shortfalls, but amending the documents to lower the quorum requirement may address this problem as well. Thirty-five to forty percent is probably more reasonable for many communities than fifty percent. You don’t want to set the requirements too low, however, to avoid allowing a small number of owners to control the board and the community; for most communities, 33 percent should probably be the floor.

**MAINTAIN STAGGERED TERMS FOR BOARD MEMBERS**

Most governing documents require staggered terms and for good reason. You don’t want the entire board turning over at the same time, resulting in a new board without any experienced trustees. But term limits can get hazy during transitions. If a board member resigns and the board appoints a replacement or owners vote on one (either mechanism is possible), the new trustee should serve only for the remainder of the departing trustee’s term. The certificate of election, which should be issued for each newly elected board member, should clearly state when the term begins and ends to create a record in case questions arise in the future.

**ELECTION DISPUTES**

They aren’t common but they do arise sometimes, usually because some owners question the accuracy, or legitimacy, of the votes.

If votes aren’t going to be counted at the meeting (which isn’t always possible), boards may consider allowing some number of concerned owners to oversee the ballot counting but are not required to do so. If there are multiple dissident “camps,” boards could also designate a representative of each camp as monitors. If the board expects the vote will be contentious, it also could ask the association’s attorney- or another third party acceptable to the dissidents – to monitor the count.

**KEEP GOOD RECORDS**

Accurate records are the best defense against election challenges.

Boards should document that they have followed their procedures for nominating candidates, providing notice of the election and counting the votes. They should also retain all ballots and proxies for at least a year after the election – just in case.

Planning and holding elections can be stressful but they do not have to be. If you have questions concerning elections, please contact Mark Einhorn or our MEEB Attorneys at law@meeb.com.

STATUTE ALLOWING VIRTUAL MEETINGS AND ELECTRONIC VOTING IS CONFUSING - THE ASSOCIATION’S ELECTION PROCEDURES DON’T HAVE TO BE

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