Q According to the bylaws, our condo association is supposed to hold the annual  meeting within the first thirty (30) days of each fiscal year. This meeting was  rescheduled due to weather but a quorum was not achieved. When questioned if  the annual meeting was rescheduled I was told no it was not. The reason given  was the board decided not to put out the extra expense for additional mailings  so not everyone was aware that the meeting occurred. Therefore I believe that  this board is in violation of the bylaws. Also the president has been serving  as both president and treasurer, which I know is a direct violation of the  bylaws. What can we do to change this?  

 —Questioning in Asbury Park

A “It is important for you to determine first if your suspicion that the board has  acted outside of the governing documents is correct,” advises attorney Samuel J. McNulty of the law firm of Hueston McNulty, P.C in  Florham Park. “Able, experienced legal counsel is necessary. Once the issues are defined, you as a member of the association do have several  alternative courses of action that you can take to require the board to comply  with the master deed and bylaws.  

 “In New Jersey, the actions of all nonprofit corporations are governed by a  statute, The New Jersey Nonprofit Corporation Act, N.J.S.A. 15A:1-1 et seq. Its provisions will apply unless there is some different procedure set forth in  the nonprofit corporation’s articles of incorporation, master deed or bylaws. You stated that the board  called a members’ meeting in January. I assume that proper notice was sent to all members of this meeting. The question you raised is whether it was appropriate for the board to have  failed to send out additional notice to the members when the January members  meeting failed to achieve the required quorum of members. Many condominium  association bylaws contain provisions stating that if quorum cannot be achieved  at the members meeting when called, that the meeting may be adjourned to a  meeting to be held generally no sooner than 30 days after the first meeting.  

 “The association does not have to incur the expense of sending out notices for  the adjourned meeting if the date and time of the adjourned meeting are  announced at the first members’ meeting where quorum failed. This procedure applies in New Jersey by virtue of the Nonprofit Corporation Act  even if there is no provisions for it in the governing documents based upon  N.J.S.A. 15A:5-4(b). If your board failed to make the announcement of the adjourned members meeting  date and time at the first meeting however, it would follow that they would be  required to re-notice the adjourned meeting in order for it to be valid.  

 “It is also clear that the board cannot rely upon an invalid members meeting to  comply with their obligation to hold an election and to hold an annual meeting.  The January meeting did not achieve a quorum. It is not a valid annual meeting  and no election or other action can be deemed to have been validly taken at  that meeting. As a member of the association you certainly have cause to seek  compliance with the governing documents by your board so that the association’s actions are valid. There are many sections of the N.J. Nonprofit Corporation  Act which apply to give you the right not only to object but to commence an  action in the Superior Court. See N.J.S.A. 15A:5-2; 15A:5-23.  

 “Under the facts presented, I would expect your attorney to communicate with the  association and seek to have the issue understood. Many times a firm but  cordial presentation of the issues is a successful method of resolving the  issue without undue conflict and expense. If this professional outreach is unsuccessful, you have several other  alternatives. First, you could seek to gather the number of signatures of  members required under your documents to hold a special meeting of the members.  Under most association documents a special meeting of the members will be  required to be called by the board secretary if a certain number of members  sign a petition requesting that one be called. Your attorney can assist you in  setting the proposed agenda for this meeting which must appear on the petition.  

 “Second, you could make a written demand to the Board to address the deviations  from the governing documents and request an opportunity to be heard under “new business” at the next scheduled meeting of the Board of Trustees. At the meeting you could raise the issue again and the demand and discussion  will be part of the minutes of the meeting. This action may convince a majority of the board of the correctness of your  position and demonstrate to the board and to the members in attendance that  there is no improper motive in your action.  

 “Finally, it may be necessary for you to incur the expense of instructing your  lawyer to institute an action in the Superior Court of New Jersey seeking a  declaration that the board has deviated from law and compelling them to  properly notice and hold a members meeting pursuant to the bylaws. As you can imagine, the cost of a legal action is high. Your lawyer should be  asked to determine whether there is a provision in the governing documents of  your association for a member to recover the attorneys’ fees and costs incurred in an action against the association. Generally, each  party to a court action bears their own costs unless a contract between the  parties call for a fee shift or a N.J. Court Rule, statute or case law provides  for such recovery.  

 “The last question that you asked relates to the fact that one board member is  serving in the dual role of both president and of treasurer. You state that this is in direct violation of the bylaws. I would suggest that  you have your lawyer confirm that dual office holding is prohibited by the  governing documents. I note that such dual office holding is permitted by the  New Jersey Nonprofit Corporation Act. N.J.S.A. 15A:6-15 “Officers” states in relevant part at section b that: “Any two or more offices may be held by the same person, but no officer shall  execute, acknowledge or verify any instrument in more than one capacity if the  instrument is required by law or the bylaws to be executed, acknowledged or  verified by two or more officers.” Unlike other provisions of the Nonprofit Corporation Act, this section does not  state “unless otherwise prohibited” by the bylaws or articles of incorporation. There may be an issue of the bylaws conflicting with the provisions of the  Nonprofit Corporation Act on this issue. Make sure that you are on solid legal  footing prior to adding this issue to any dispute with the association as the  deviation may not have as serious immediate consequences as your first issue.”      n