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KASS: Can condo ‘deconversion’ vote be left open?

Q:     I read your recent column and would ask your opinion on the situation that currently exists in my condo building.
There has been an offer made to purchase the entire building (260+ units) and deconvert from condos to rentals. Per the condo by-laws, a deconversion/sale requires a vote of 75 percent of ownership in favor of the sale. To date, the vote taken has resulted in a tally of 69.26 percent in favor of the sale, 28.82 percent against, leaving another 1.92 percent who did not vote. Can the vote be “left open” indefinitely, or should a definite end date be set? Several members of the board of directors, in favor of the sale, have now put off finalizing the vote.

Since the referendum is still open, one does not know whether they are staying, able to sell their individual unit, or find a renter under these circumstances. Finally, putting the vote to rest would provide some stability to all unit owners. Can a referendum be permanently left unresolved? Gina.

A:   Dear Gina. Votes on association issues typically take one of two approaches, depending on state statute and governing documents—voting at a meeting or some type of written approval outside a meeting. I asked my friend Jim Slaughter for his views. Jim is an NC community association attorney, fellow member of the College of Community Association Lawyers, and a recognized Parliamentarian. Jim says: “If this vote was taken at a meeting, there really is no general parliamentary procedure for ‘keeping a meeting open’ indefinitely, unless there is some very precise state statute or governing document language. A meeting convenes, meets, and then adjourns. There technically isn’t a meeting unless the members are together in some way, whether in person or electronically. Members could set an ‘adjourned meeting,’ which is a legal continuation of the current meeting, but that meeting will also have a beginning and an end. As an alternative to a meeting, there are state community association and nonprofit corporation statutes that permit approval of certain items by written or electronic consent or a ballot sent by mail or email, but those don’t normally count as a “meeting.” They are procedures taken in lieu of a meeting. So in my state, for example, this condo could have chosen to get the percentage written consent of all units by any means necessary, or they could have chosen to call a meeting and see if enough owners show in person or by proxy to get the necessary vote. If the meeting didn’t accomplish the task, that just means the association chose the wrong path. There are normally two options in such circumstances: (1) get everyone at the meeting to give a proxy to someone and set an adjourned meeting, hoping that more owners and proxies will show up at that meeting to be over the necessary number; or (2) now take the written consent or ballot option permitted by HOA/condo statutes to have owners approve in writing with no meeting. (A few states now permit absentee ballots of people not at the meeting to be combined with ballots at meetings, but that’s not the standard community association statute language.)”

Based on Jim’s response, the meeting was over and the vote did not pass. But don’t rely on our responses. We do not represent you and cannot give specific legal advice. Talk with an attorney in your state who practices community association law.

 

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INTERESTING PROPERTY CASE:

I often hear of interesting cases, and like to pass them on to my readers. This past summer, a Michigan man was charged with driving while intoxicated. While unfortunately, that’s not news, in this case the man was driving on his own driveway.

Apparently, neighbors called the police to complain about noise, and when the police arrived they found the driver on his own driveway.

Michigan’s law – similar to many other state laws – says you cannot operate a motor vehicle while intoxicated “upon a highway or other place open to the general public or generally accessible to motor vehicles.” According to the Michigan Supreme Court, the private driveway “was designed for vehicular travel” and thus any other car could turn onto it from the public street. Thus, the conviction was upheld.

Personally, I think this is a bit of a streach. But more and more, our home is no longer our castle.

Interesting legal question: am I “driving” a driverless car? I suppose the court will take the position I am “operating” it.

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