With school back in session and the summer winding down, many of us are looking forward to the advent of the fall season and its accompanying benefits, including cooler temperatures and fall sports. If you are a property manager or serve on the Board of a community association, the fall season also likely means association annual meeting season. In fact, many community associations are already gearing up to prepare for their upcoming fall annual meetings. And, as preparations begin, a number of questions on proper notice and handling of the meeting inevitability arise. Perhaps the most primary of these questions is “who gets to vote?” This is where your HOA voting rules come into play.
Suspension of Owner’s Right to Vote
This question most commonly arises in the context of suspension of owners’ right to vote based upon delinquency or other violation of the association’s governing documents. One of the most important things to remember concerning suspension of an owner’s right to vote is that an association must be certain, prior to refusing to allow an owner to vote, that it has the specific authority to do so in its governing documents and HOA voting rules. Simply put, if the authority to suspend an owner’s right to vote is not specifically granted in an association’s governing documents, the association does not have the power to suspend it. This is true even if your association is subject to the Georgia Condominium Act or the Georgia Property Owners’ Association Act (“POAA”). While both of these statutes contain language allowing an association to suspend an owner’s right to vote on the basis of a violation of the governing documents, including failure to pay assessments, both statutes specifically provide that the association only has the power to suspend HOA voting rights “if and to the extent” that power is already provided in the association’s governing documents. So, if the association does not already have suspension power in its governing documents, neither the Condominium Act nor the POAA will give it that right.
In addition to verifying that its governing documents provide the power to suspend an owner’s right to vote, an association must also be careful to follow any necessary procedures set forth in its documents prior to suspending an owner’s right to vote. If an association’s governing documents provide that an owner’s right to vote will be “automatically” suspended when the owner becomes more than a certain number of days delinquent, generally the Board will not need to take any action to suspend an owner’s vote. That is, so long as the owner is delinquent by the number of days stated in the documents, they no longer have the right to vote. However, many governing documents contain language that, while giving the Board the right to suspend an owner’s vote, requires that the Board take some action before suspension of the owner’s vote becomes effective. Oftentimes, this language will provide that the Board “may” or “has the power to” suspend the delinquent owner’s right to vote. If an association’s documents provide this language, the Board must take formal action in order to suspend the owner’s vote, such as by adopting a resolution at a Board meeting that provides that the vote of all owners who are more than a certain number of days delinquent will be suspended.
Further, in some cases, an association’s documents will require that the association send written notice to the owner prior to a suspension telling the owner why his or her rights are being suspended and giving him or her time to correct the delinquency or other violation before the suspension becomes effective. In fact, regardless of whether your documents require that you send notice to an owner whose voting rights have been suspended, it is good practice to notify those owners that their right to vote at the meeting has been suspended in order to give these owners an opportunity to bring their account current before the annual meeting.
To sum up, as your association begins preparations for an annual meeting at which it intends to suspend the voting rights of owners in violation of the governing documents, it should review its governing documents to ensure that (1) it has the right to suspend the owners’ voting rights and (2) it follows all required procedures before suspending those rights. If an Association acts outside of its authority in suspending an owner’s right to vote or otherwise fails to follow proper procedure, the consequences can be severe, including invalidation of any votes held at the meeting. For that reason, it is a good idea to consult with your association attorney prior to suspending an owner’s right to vote.