Passing bylaws while maintaining social distancing

Date Published : Apr-27-2020

Written By : Phillip Livingston

Condo and HOA board members have encountered some very new challenges since the COVID-19 outbreak. Large gatherings have been banned in most states and provinces, and people are being asked to stay home unless they’re going out for a bit of exercise, or to get essential items such as food or medication.
While the social distancing measures are necessary, they have created issues for boards who need to hold a meeting before they can move forward with certain issues or responsibilities.
Is it even possible to pass a bylaw right now? Yes – but please continue reading to find out more.

 

Click here to download our bylaws template

 

What do bylaws cover?

Bylaws address the structure of the day-to-day governance of a condo or HOA. They regulate items such as:

  • How directors are elected
  • Frequency of board elections
  • How long service terms last
  • Duties and responsibilities of board members
  • Voting procedures
  • Meeting frequency and quorum requirements
  • How common expenses are assessed and collected
  • When/how the condominium can borrow money
  • Maintenance of common elements and units

Bylaws must be reasonable and consistent with state or provincial laws and your covenants, conditions, and restrictions.

 

Making new bylaws

The board of directors can make, amend, or repeal bylaws, and homeowners can provide input. However, bylaws do not come into effect until they are approved by a majority of homeowners (the definition of a majority will vary depending on where you live). The association or corporation may also have to record new bylaws with the county or province.
Bylaws can be hard to pass or amend because they require support from the majority of homeowners. Do you best to educate homeowners about the new bylaw well before the vote takes place. Make it clear why the bylaw is important, and how it may benefit the community.

 

Why add/update bylaws

There are several reasons why an association may need to create a new bylaw or update an existing bylaw. Some reasons include:

  • Outdated provisions are no longer applicable or useful to an association
  • The bylaws may not accurately set forth the legal requirements for preparation or distribution of financial reports or other documents
  • Bylaws may provide certain time limits for notices of meetings that may no longer be legally correct because of statutory changes
  • Documents may fail to take advantage of more flexible rules regarding meetings, participation by members, telephone meetings, etc.
  • Provisions conflict with current laws and need to be removed
  • Developer privileges need to be removed
  • There is a need to improve poorly drafted documents and clarify ambiguous provisions
  • There is a need to tailor documents to fit the living experience of owners/members
  • There is a need to adjust for changes in technology (virtual meetings, home office use, etc.)
  • Mistakes and/or errors need to be corrected

As always, it’s a wise idea to consult with a lawyer before creating a new bylaw or amending an existing bylaw.

 

Changing bylaws while maintaining social distancing

Boards may have been in the process of introducing or amending a bylaw before social distancing measures were enforced. They may get the votes they need to pass the new bylaw by hosting virtual meetings. Alternatively, boards may need to pass a new bylaw right now so that they can host virtual meetings.
Some associations do have a restriction that won’t allow electronic/virtual meetings to take place. They may be wondering if they can have a virtual meeting to remove that virtual meeting restriction. While no lawyer would encourage an association to violate their documents, from a practical perspective, it is unlikely that any legal ramifications will result from hosting a virtual meeting to pass a new law that would allow an association to conduct meetings safely.

 

 

Condos and HOAs have been advised to delay/reschedule AGMs and member meetings if possible, but if this cannot be done, boards should work together (and of course remotely) to host a virtual meeting so that they can move forward with time-sensitive matters.
Adequate notice of a meeting must still be provided to homeowners, along with any matters or material required or permitted.
 

Obtaining votes

Let’s say your board is trying to pass a new bylaw about virtual meetings. In order for the bylaw to be valid and enforceable, you’re going to need votes from your community. This is where e-voting will come in handy.
Not all associations permit it, but e-voting offers more flexibility, allows owners to vote from their homes, and participants can even cast ballots before the start of the meeting. As such, boards can determine if they’ll reach quorum before the meeting begins. Our E-Voting feature enables management to create and schedule votes online. They can also send reminders about an upcoming vote to owners using email, text messages, or automated voice messages.
Boards may also consider proxy voting and allow homeowners to select someone to cast their vote on their behalf, or they can mail ballots to homeowners and request that those ballots be mailed back before a specific date.  If homeowners are given the opportunity to select a proxy, keep in mind that the proxy will need to be the chairperson in this case as they have to “attend” the meeting.

 

Keeping your homeowners informed

In order to pass any bylaws right now, boards will need to share clear instructions with their homeowners and maintain good communication with them. Make sure to follow time requirements when sending the preliminary notice out to owners about the meeting. Include a very clear set of instructions about how people can submit their vote, and how they can join in the virtual meeting. You may even want to have a short premeeting beforehand using the virtual meeting software. This gives everyone an opportunity to try it out, and if anyone is having trouble logging in, they can reach out to the board before the scheduled meeting takes place.
Don’t forget to announce the results to the owners. Send out an announcement to your community in case some people were unable to attend the meeting and hear/see the results.

 

Tips for a smoother online meeting

When hosting virtual meetings, it’s not a bad idea to set ground rules. This will be a new experience for a lot of people, and creating guidelines will help ensure the meeting runs smoothly. Remind participants that there is a purpose for the meeting; it’s not a free-for-all to bring up concerns and complaints.
Do include a short portion for member comments or questions at the end. This way, people can bring up pressing issues, especially those related to COVID-19, at an appropriate time. If there is a real need for a conversation to be had, set up a separate meeting.
Finally, be patient. There may be some new challenges when it comes to joining the virtual meeting, but once your community becomes familiar with the software and the process, you may find that people are more willing to attend and participate.

 

What about the old bylaws?

Copies of the old bylaws need to be maintained by the association for historical reference purposes. If you have a designated area online where governing documents are stored, ensure to update the bylaws, but don’t delete the older version. Bylaws that were added or changed should also be documented in the association’s meeting minutes.

Download Template

Download our free bylaws template