When it comes to voting in connection with homeowners association business, the term “quorum” is often used and frequently misunderstood. By definition, a “quorum” is the minimum number of the members of a body that uses parliamentary procedure that is necessary to conduct the business of that group. Robert’s Rules of Order, states that “the requirement for a quorum is protection against totally unrepresentative action in the name of the body by an unduly small number of persons.”
There is no one established number that constitutes in connection with the functioning of the board of directors of a homeowners association, or a meeting of the membership body of a homeowners association. The number of members that constitutes a quorum will either be set by the laws and/or regulations of the state in which the homeowners association is domiciled, or be provided for in the governing documents for that association (typically found in the bylaws but may be mentioned in other documents). If there is a conflict between what is required under a state’s laws or regulations and what is required by the association’s governing documents, the state’s laws / regulations will generally control unless they state to the contrary.
It is fundamental that the chairperson of an intended assembly be familiar with the requirements that apply to that assembly of people. Since the ability to properly conduct business is totally dependent on a preliminary determination of whether or not the required quorum for that assembly has been established, before any business is conducted the chairperson has a duty to declare that a quorum is present or that there is an absence. Robert’s Rules of Order provides that “in the absence of a quorum, any business transacted is null and void.” To avoid such situations, many state laws and association governing documents allow for the use of a secret ballot to obtain member votes as opposed to actual attendance at a scheduled meeting. When voting is by secret ballot, the ballots are mailed or delivered to all of the association’s members and the minimum quorum requirements are established on the basis of the returned ballots that are actually received by a designated inspector of elections within the required time period for the return of the ballots. With voting by secret ballot, the risk of not establishing a required quorum is greatly reduced.
When the chairperson for a meeting has made a determination that a quorum is present, he or she will “call the meeting to order” and proceed with conducting the business of the meeting. Once that has occurred, the quorum requirements for that meeting are presumed throughout the meeting unless someone notices that the departure of one or more people has resulted in the loss of a quorum. If applicable laws and/or the association’s governing documents state that a particular matter must be approved by “a majority of a quorum” (of the members or the directors), the matter in question must be approved or ratified by a majority of the votes represented and voting at the meeting where the quorum has been established. If the chairperson becomes aware that a quorum is no longer present, he or she has a duty to declare the absence of the required quorum before taking any vote or addressing any new motion. A member other than the chairperson who becomes aware of the absence of a quorum during a meeting should make a “point of order” to address the lack of the required quorum. Unless it can be determined exactly what business had been conducted in the absence of a quorum, the raising of a point of order re lack of a quorum will not generally affect action that was taken prior to the time of the point of order. When it is clear what business was conducted in the absence of a quorum, the chairperson can invalidate the action that was taken without the required quorum.
After there has been a determination that a required quorum has not been established, the only additional business that can be legally taken is procedural actions in connection with measures to obtain a quorum such as: (i) fixing the time for an adjourned follow-up meeting; (ii) adjourning the meeting; (iii) recessing to locate absent members. Because quorum requirements cannot be waived, if a meeting cannot proceed due to the lack of a quorum, the chairperson should fix the date and time for an adjourned meeting and then adjourn until the time of the new meeting. A chairperson that has made a determination that a quorum is not present has the authority to wait a reasonable period of time to see if additional members appear to establish the required quorum, or if it becomes apparent that a quorum will not be established, the chairperson should call the meeting to order, make an announcement that there is an absence of a quorum, and then proceed with one of the alternatives mentioned above. If a meeting is adjourned because of a lack of a quorum, the time and place for the adjourned meeting should either be announced to those in attendance at the initial meeting before it is adjourned, or subsequently delivered to the appropriate members in the same manner that is required for providing notice of meetings.
To overcome the problem of not achieving a quorum, and thus not being able to conduct all necessary business, some states and/or association governing documents provide for a “descending quorum” at subsequently reconvened meetings. For example, if the initial quorum requirement was 50% and a quorum was not attained, the provisions will allow for a quorum of not less than 25% at the reconvened meeting.
Disputes concerning elections within homeowners associations are frequently the subject of litigation that becomes quite costly to all parties and damaging to relationships within the community. Association boards should consult with an experienced professional to make certain that they are familiar with their state laws and the provisions in their governing documents relative to election rules and procedures before taking action in order to avoid costly mistakes that frequently result from violations of the applicable laws and the provisions in the association’s governing documents that were not followed. The cost of consulting an experienced property manager or HOA attorney for clarity on these issues before taking action is always going to be considerably less than the cost of dealing with the problems that are created by acting without a proper understanding of applicable requirements.