HOA Law Tip: How to Properly Conduct Board Business by Email Without a Meeting

As HOA and condominium association boards of directors continue to operate their communities under unusual and often difficult conditions created by the pandemic, many boards are turning to email correspondence to handle board votes on routine HOA business. With the increased popularity of email votes, boards should consult with an HOA attorney to ensure that association business conducted by email is proper pursuant to the HOA’s bylaws and Georgia law. Otherwise, without the guidance of an HOA lawyer, decisions made without authority could be invalidated by a court.

Georgia Community Associations Operate Under the Georgia Nonprofit Corporation Code

Georgia HOA and condominium associations must be established as nonprofit corporations pursuant to the provisions of the Georgia Nonprofit Corporation Code. This Georgia statute sets a baseline for corporate governance for all nonprofit corporations.

The Georgia Nonprofit Corporation Code serves as the standard provisions for many community association bylaws and other governing documents. One of the baseline provisions is Section 821 of the Code, Action Without Meeting. This provision allows a board to conduct official association business outside of a board meeting. However, the unanimous consent of the board may be required. 

The Code states that unless the corporation’s articles or bylaws specifically provide otherwise, corporate action permitted to be taken at a board of directors’ meeting may be taken without a meeting only if the action is taken by all members of the board.

Unanimous Consent for Email Votes May Be Required for Community Associations

The potential pitfall of the Action Without Meeting provision is the requirement that action taken outside of a board meeting be by unanimous consent, unless otherwise provided by the bylaws or the association’s articles of incorporation. While many associations’ bylaws specifically authorize the board to approve action by a majority vote outside of a meeting, boards should confirm this authority with an HOA lawyer to ensure that a majority vote is authorized, and that unanimous consent is not required.

If your board has questions about whether your community’s bylaws allow for the board to approve actions by email with a majority vote or unanimous consent, consult with an HOA attorney.

HOA Boards Can Avoid Meeting in Person if All Directors Can Hear Each Other

Even if your community association’s bylaws do not authorize the board to approve action by less than unanimous consent of the board outside of a meeting, the board can still approve association business without the need to meet in person. Section 820, Meetings, of the Nonprofit Corporation Code allows the board to meet by electronic videoconferencing or telephone call so long as all members of the board can simultaneously hear each other during the meeting.

Under this Code Section, a director participating in the board meeting by video or telephone means is deemed to be present in person at the meeting. This means that your board may use Zoom or other videoconference software to meet and approve association business. Boards may rely on this authority to discuss the need for an upcoming vote by email and schedule a teleconference or video call to conduct the voting on association business.

All HOA Board Action Must be Reflected in Meeting Minutes

Whether the board acts through email or meets by phone or videoconference, the board’s actions must be reflected in board minutes.  For email action, the email consents of each director must be included in the next meeting minutes and kept with the association’s official corporate records. For meetings by phone or videoconference, the association secretary should take minutes just as though the board meeting were held in person.

The purpose of minutes is to record all actions voted on by the board. For in-person, phone or videoconference meetings, minutes should include a record of those present, including present by phone or video platform, document business brought before the board and reports given, and indicate whether each motion was approved or how it was otherwise disposed. Meeting minutes should not be a word-for-word transcription or recording of all that transpires at a meeting, nor should they be a recounting of all the comments made at a meeting.

Contact NowackHoward for HOA Law Advice for Your Board of Directors

At NowackHoward, we focus on condominium and HOA law throughout Georgia. To learn more about our practices and how we can help guide your community, contact one of our attorneys today at (770) 863-8900 or by email at info@thecommunitycounsel.com.

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