For example, let’s say the annual meeting has been going on for some time. As the chair, you’re about to call for the vote to ratify the budget, when an owner raises her hand and says, “I didn’t get a copy of the budget in my meeting packet. I’d like more time to review it.” You quickly check with your manager and discover that, due to a clerical error, the budget was not mailed to owners in their meeting packets. What should you do?
When a “fatal flaw” occurs, it can’t be fixed at that meeting, so a new meeting must be held. If a meeting or a vote goes forward in spite of a fatal flaw, the outcome of the vote or meeting is invalid.
One obvious fatal flaw is lack of quorum. If your meeting does not have a quorum (the minimum number of owners required to be present to act), then the only actions that can be validly taken at the meeting are: 1) recess the meeting (to see if you can round up enough people or proxies to get a quorum), 2) set the time for the next meeting, and 3) adjourn. Any other action taken at a meeting without quorum is invalid.
More commonly, fatal flaws arise because of lack of proper notice. Proper notice is a key tenant of parliamentary procedure. That’s because if owners don’t know that an issue is going to be voted on, or don’t know that a meeting will be held, it’s not fair for the association to take action. State law, declarations and bylaws all contain rules about proper notice for owners’ meetings.
If actions that require specific notice are not on the meeting agenda, then that action cannot be taken at, for example, the annual owners meeting.
Another example of lack of proper notice is when notice provisions in the declaration or state laws were not followed, for example, if the meeting notice was not posted or mailed within the time-frame required by state law. If those notice provisions were not followed, no action taken at the meeting is valid. Similarly, state law may also have very specific notice requirements that must be met before a budget can be ratified. Most declarations and bylaws have detailed instructions for how notice must be given before an amendment is valid. If those notice provisions were not followed, then the action cannot be taken.
In a board meeting (as contrasted by an owners’ meeting), improper notice can be waived if all directors consent, but waiver of improper notice is not an option for owners’ meetings. The only cure for a fatal flaw is not to take the action, or reschedule the meeting, then give proper notice next time.
By: Amelia J. Adair