Q&A: Regulating Board Elections

Q I live in a condo complex that has four buildings. Our election for board members is based on the highest number of votes from the four buildings. The problem is that the number of units in each building are not equal. For example one of the buildings has 28 units while the smallest building has 11 units and the other two have 17 units each. The building with 28 units always dictates which candidates will be voted in. Our governing declaration has a provision that requires the board to be made up of one unit owner from the four buildings. Obviously the original intent of this provision was made to ensure equality across the board and prevent dictatorship. However the board stated this is not in the bylaws, and provided no explanation. I believe this provision is applicable and has been disregarded so the dictatorship can continue and dominate the board. What, if anything, can I do?

—Seeking Fairness

A “Condominium elections can be the source of great consternation for many unit owners and board members,” says attorney James Stevens, previously with the Chicago-based firm Connelly Law Group, and now with Tressler, LLP. “All too often association elections are more difficult than they should be due to confusion over how voting should operate based on association's bylaws and declaration. Generally, the association's declaration will provide for how elections should run and how individual votes are counted. Most associations use either a percentage ownership-based vote or a one unit, one vote scheme. Some using a percentage ownership-based vote will have cumulative voting, which allows a unit owner to divide their voting power over more than one candidate.”

“Associations with multiple buildings of varying size often have a provision to ensure that each building has a dedicated board seat. Here, the reader suggests that their association has a provision in the bylaws that requires representation for each building that is not being followed by the current board. While I cannot give legal advice without reviewing the specifics here, there may be a conflict between how the current board is managing the association's electoral process compared to the declaration and bylaws.”

“The declaration and bylaws must, generally, be followed to the letter by an association's board. If the board is not following the declaration in a reasonable manner, unit owners can often take action through other provisions in the bylaws. Most association declarations provide that unit owners can petition the board to remove a board member or band together and take action that the board refuses to do. Here, the smaller buildings may want to consider what terms their declaration and bylaws allow; unit owner votes can remove board members and petition the board for action. Though the 28-unit building may control the board currently, the smaller buildings together contain more unit owners and can likely exert some "political" pressure if the declaration allows it.”

“Most attorneys who draft condominium declarations write in a unit owner vote provision that allows the unit owners to exert some popular pressure on boards that may not be undertaking their duties reasonably. Ultimately, though not favored or recommended in most situations, if the unpopular board is not taking care of its obligations under the declaration and the outgoing board continues to refuse to follow the strict letter of the declaration, unit owners may need to consider a lawsuit.”

Related Articles

Running Better Meetings

Running Better Meetings

Communication, Education, & Structure



  • People have very strong opninois on what can be done or not, and what should be done or not, and what the law means. In California, the elections law for HOAs and Condo associations was really written with public elections in mind and that is not a very good fit. Robert's Rules allows for acclamation and I believe it does describe a process that takes place at the annual meeting. However, the California elections law muddies that up by requiring double envelope ballots that are mailed ahead of time, and that has caused mucho confusion for everyone. HOAs and Condo associations are finding them selves with the quandary of what to do when no one wants to run, when they have to drag people out to even consider serving and when they do not have enough candidates for a contested election, and they they are faced with the question as to whether to spend the money to follow through with the mailed, double envelope voting process with inspectors of election, or just say heck we are lucky to have enough people to serve and let's go forth without all the hub-bub and expense. Of course, there are still, too, some boards that put up all kinds of hurdles to people who want to serve, yes, and acclamation can be improperly used, and since the law does not allow it, can be challenged. However, to say that sending out ballots with write in blanks on it is always allowed is also contrary to the law, which makes it permissive, not a requirement. And there are association documents to consider too. If they allow use ofRobert's Rules, then it would be reasonable to argue that the elections law does not permit voting at a meeting, rather it requires a process, and so the use of acclamation allowed by Robert's Rules and thee documents should still be honored in whatever practical way that would occur, all other things being done properly and aboveboard. I do not know who would win the argument over such a question should it arise. If a board uses it to effectively block viable board candidates, then it would probably lose the argument. However, if it could show that it was diligent in trying to seek out candidates from all members who would properly qualify to serve, and candidates were scarce, then the election should not be overturned and the argument that acclamation is not an option should lose. Just my two cents on this, having had much experience in trying to make the laws work in a responsible, practical way without engendering unnecessary expense. Any board should get legal advice if the question arises but even then, it still may have to decide whether to avoid the expense, or go forth and complete the balloting, counting process.