A question came up during a recent online discussion about “what members can do at an HOA or condo membership meeting?” Specifically, the questioner wondered if a member could seek recognition and unexpectedly make a motion to “make the association do most anything.”
It’s a good question, and one we community association lawyers spend time analyzing. Hate to say, “It depends,” but facts matters. This is not a question that can be answered in a vacuum without specifics. State statutes and governing documents (usually the bylaws or articles of incorporation) vary as to what authority the membership has versus the board, and whatever group is given authority is usually the one who must exercise it.
Broadly and generally (and ignoring what any specific governing documents may say), the board is the governing body for the association and the members have limited, but ultimate authority. The standard governance model gives the members authority to elect the board, remove the board, and amend the governing documents (and sometimes other authority such as adopting or ratifying the budget or voting on dissolving or merging the association). Those powers generally make the members the final decider on issues. On a day-to-day basis, though, the board governs the association and makes day-to-day decisions. The standard model, then, would be that while the members at an annual meeting might raise concerns about the landscaper and provide feedback to the board, the board would be the entity voting on whether to renew the landscaper’s contract. If the members don’t like what the Board is doing, they can change the board or amend the governing documents to require certain decisions be made by the members. (FYI, that can become cumbersome from a governance perspective, particularly in emergencies.) In the landscaper example, even if the membership could vote to fire the landscaper at a membership meeting, a written contract signed by the association upon the authority of the board might make the vote mean little.
To further complicate what can be done at a membership meeting, both state statutes and governing documents often state what business can come up at an annual meeting, provide that only items listed in the notice or agenda can be considered, or actually list the agenda/business items for the meeting. Because of that, beyond the noticed agenda, an annual membership meeting is not generally a “and then let’s vote on anything of concern to the community that any member wishes to bring up” meeting.
As can be seen, the situation is more complicated than it appears. It’s possible that various association matters could be decided by the membership if authorized by the governing documents, but that tends to be impractical in all but the tiniest of associations. Only the board has the time to investigate, all necessary information, and the ability to access professional advice. As a result, it’s imperative to elect competent, responsible members to the board since the membership is electing them in most instances to govern the association in their place.
Author: Jim Slaughter
Articles have been Reprinted with permission from Black, Slaughter, Black.
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