Q. Can an HOA issue a proxy/ballot for voting only in advance of an annual meeting for additions to the common areas? Proxies and absentee ballots are allowed in the bylaws for such issues (not elections) but no mention of voting only in advance by ballot. Shareholders have been asked to bring the ballots to the office or to the door of the meeting. The bylaws say “not withstanding” the section regarding proxies, shareholders have the right to vote at the meeting. The ballots will be collected before the meeting without an opportunity to discuss the issue at the meeting. Does that meet the right to vote at the meeting?
—Please Illuminate Me
A. According to Jennifer Alexander, attorney for the Randolph-based firm Griffin Alexander, P.C.: “All HOAs are governed by the New Jersey Planned Real Estate Development Full Disclosure Act, N.J.S.A. 45:22A-21 et seq. (PREDFDA) and the New Jersey Non-Profit Corporations Act, N.J.S.A. 15A:1-1 et seq. (The Non-Profit Act). While these Acts provide that mail ballots are allowed for election purposes, there is no explicit statement in the legislation that allows for mail ballots in matters other than elections.
“The Non-Profit Act sets forth laws governing action by members without a meeting. Pursuant to N.J.S.A. §15A:5-6(b), any action required or permitted to be taken at a meeting of members may be taken without a meeting upon the written consent of members. Further requirements are set forth in this section of the Act. If the conditions in this section are met, the vote may only occur in the manner set forth by the Act—without a meeting upon the written consent of the members—if the bylaws of the association are written in a consistent manner. PREDFDA further allows the bylaws to set forth the right of members to act by written agreement without meetings, as noted above. See N.J.S.A. §45:22A-46(b): ‘The bylaws may, nevertheless, provide that an individual association member, and a voting-eligible tenant where applicable, may waive notice of meetings in writing, or may act by written agreement without meetings.’
“As noted in the [question], the bylaws state ‘notwithstanding other sections regarding proxies, shareholders have the right to vote at the meeting.’ The provision of the Non-Profit Act authorizing voting without a meeting begins with the phrase ‘[e]xcept as otherwise provided in the certificate of incorporation or bylaws…’ PREDFDA also allows the bylaws to set forth the right of members to act by written agreement without meetings. In conclusion, there is no explicit authorization in the legislation that allows for mail ballots in matters other than elections, and the Acts allow the bylaws to govern whether a vote without a meeting can be held. Accordingly, the association referenced in the [question] must allow the shareholders to vote at the meeting due to the provision noted in the bylaws.
“The bylaws can then be amended under PREDFDA, pursuant to the recent Radburn Amendments, which allow for two methods of amending the bylaws without a meeting of the membership: (1) to rectify a conflict with ‘state, federal, or local law’; OR (2) the executive board passes an amendment and then leaves it up to the members to veto the amendment, which can be accomplished with a 10% negative vote. Under the Radburn Amendments, if the current bylaws require more than a 2/3 vote to amend the bylaws, then the bylaws may now be amended by a 51% vote. Such a vote must be performed with a meeting of the members. All amendments to the Master Deed must be performed in accordance with the governing documents, as these laws governing amendments only apply to the bylaws.”