> Homeowner Association News
Ask The HOA Expert - March 17, 2004
by Richard Thompson
Question: At a recent Board Meeting, a director abstained from voting. Is that legal? Is the abstention counted as a "No" vote? Answer: Yes, a director can abstain but should have a good reason for doing so, like a conflict of interest. The abstention is not counted as a "No" vote but may have the same effect if lack of that vote means a majority vote can't be met. The minutes should reflect the director’s abstention and reasons. Question: Our HOA developer still has a number of unsold lots for which he is not paying homeowner fees. The governing documents allow this under the condition that there is no building permit in effect. This doesn’t seem fair when there are ongoing landscaping, insurance and administrative costs. Answer: It is not unusual for developers to reserve special privileges for themselves. But these kind are shortsighted and bound to create ill will. Even if the developer isn’t required to pay homeowner fees, he’s still obligated to maintain his unsold lots in reasonable condition as would any owner. Either he can reimburse the HOA for providing the maintenance service or arrange for it on his own. If he fails to properly maintain his property, the HOA has the right to do it for him and require reimbursement. That's only fair. Question: Are there legal guidelines for elections by mail that must be followed? How are ballots secured prior to being counted? How and where are they counted? Answer: There may be a statute in your state that deals with this issue. But from a practical perspective, voting by mail precludes nominating someone at the annual meeting, getting to know the candidates and their agenda or the issues. Voting by mail should generally only happen when the majority of owners are nonresident and cannot easily attend a meeting, or when issues are clear cut and don't require debate. That said, if an election or vote is done by mail, ballots should only be collected and tallied by a neutral third party. To do otherwise would certainly open the door to fraud. An independent CPA, attorney or escrow agent (title company) could facilitate that process. Once the ballots are all received, any member that would like to be present when they are counted should be allowed to be there. The time and place of the tally should be declared in the election notice and ballot material. There is no reason the neutral third party couldn’t conduct the tally onsite at the HOA for easier accessibility to the process. Question: We are contemplating gating our HOA. What are the pros and cons of such an arrangement? Answer: Gating an HOA is not allowed in some jurisdictions so checking with the city or county is the first step. From a more practical aspect, there are concerns about emergency vehicle access. Legitimate vendors like pizza delivery, lawn service and the plumber will have to run the gate gauntlet as well as your friends and family. Gates are far from maintenance free and tend to break down after hours when repair rates double. Most gated HOAs end up discontinuing them due to the many glitches of the system or the perception of being elitist. | 
