It’s Time to Enact E-Notice and E-Voting Amendments to Your Community Association’s By-Laws
March 22nd, 2021 | Community Association Law Blog
By Mary Wynn Seiter, Esq.
In the wake of the pandemic, many community associations have been in “react” mode, dealing with all the various challenges of the times – and many have not yet enacted amendments to their by-laws to allow electronic notice to members and electronic voting for annual meetings, elections, and other association matters. The Radburn amendments to the Planned Real Estate Development Full Disclosure Act, and the more recent Department of Community Affairs regulations relating to those amendments, both provide community associations the ability to update their operations to reflect the realities of electronic communications in this digital age. While we will be living in a hybrid electronic/paper world for some time to come in order to accommodate those without online access, the advantages of default electronic notice and voting are still tremendous. If your community association has not yet done so, you should take steps now to amend your by-laws to provide for electronic notice as well as electronic voting – and the most effective way to do so is to use the streamlined, “rejection ballot” voting method authorized by the Radburn amendments.
What do we need to do to allow us to provide electronic notice to our association’s members? At a minimum your by-laws should be amended to provide electronic notice as an option for all notices that are required under the by-laws and other governing documents (subject to the terms of those governing documents, of course). While today electronic notice is generally understood to be e-mail, an amendment should be more broadly defined to allow the provision to be flexible as new and better means of electronic communication evolve. Owners must be given the ability to opt out of electronic notice, but the responsibility of doing so rests with the owner.
How about electronic voting? In the wake of the DCA regulations, which place tremendous procedural responsibilities on associations to conduct anonymous voting for board elections and by-law amendments, with public tabulation of ballots, the advantages of conducting elections electronically – using an online voting service – is even more attractive for associations. Electronic voting is not voting by emailing your ballot in; rather, it is the use of an online service that provides credentials for voting to all owners via email, along with instructions (a website address and ID, or a personalized link for that owner) on how to enter the system and cast one’s vote. The evolution of this marketplace means there are numerous firms offering reasonably priced online options suitable for associations of all sizes, so the time is right for associations to implement the option for e-voting. Implementation involves amending the by-laws to allow the Board the option of using e-voting for any vote presented to the membership, with an option for any owner to vote using a paper ballot or absentee ballot if they so choose.
Non-rejection amendments to the By-Laws These amendments can be approved by the association’s board and then presented to the membership by sending a notice containing the amendments, along with a rejection ballot that owners can return if they reject one or both of the amendments. If less than 10% of the membership rejects the proposed amendments within 30 days, the amendments are considered approved and the board can move ahead with recording them. Hopefully your community can implement these important amendments so that your next annual meeting can have notice sent by email, and voting done online!
If you have any questions or seek additional information on how to accomplish these changes, please contact our law firm.