Q: Can members of a condominium association vote electronically/remotely and can they be given their notices by e-mail? (K.R., via e-mail)
As these terms are often confused, there are several distinct procedures that are often asked about:
- Electronic Voting (or “E-Voting”)
- Electronic Notice (or “E-Notice”)
- Remote Participation
- Absentee Voting
E-Voting is where someone logs onto a website and can vote at an association meeting (annual or special) on whatever business is before the meeting such as amendments or the election of directors. Under the statute those who participate by E-Voting are deemed to be “present” at the meeting.
E-Notice is when the association gives owners “official notices” (notice of member meetings, notice of board meetings where personal notice is required) by e-mail, rather than regular U.S. Mail. Certain notices are not permitted to be given electronically per the statute, even if the owner consents. These include recall and certain assessment notices.
Remote Participation is where an owner is allowed to participate remotely through a platform such as video conference and is considered “present in person” at an association meeting and can actually vote “from the floor” (though a voice vote is obviously required).
Absentee Voting, for general purposes in a condominium, is someone sending in a proxy by fax or as a pdf or similar attachment to an e-mail. Owners cannot just send an e-mail that says “I vote yes” a limited proxy form is required to be used.
E-Voting, E-Notice and Remote Participation all require an enabling resolution from the board. Absentee voting is an owner’s right by statute. Further, owners who wish to use E-Voting or receive E-Notice must give written consent.
For E-Voting, the board of directors must adopt an enabling resolution. Notice of the board meeting at which a resolution will be considered, must be mailed, delivered, or electronically transmitted (where an owner has consented in writing to receive official notices by e-mail) to all owners, and conspicuously posted at least fourteen 14 days before the meeting. The board resolution must provide that owners will receive notice of the opportunity to vote through an online voting system, must establish the procedures and deadlines for owners to provide written consent to online voting, and must provide the procedures and deadlines for owners to opt out of online voting after giving consent.
The association must also provide each owner with a method to authenticate the owner’s identity to the electronic voting system, a method to confirm that the owner’s electronic device is able to communicate with the electronic voting system at least 14 days before the deadline, and, for board elections, a method to transmit an electronic ballot to the online voting system that ensures the secrecy and integrity of each ballot. Owners must also consent in writing to electronic voting and, if an owner does not consent to electronic voting the owner must be permitted to vote by using paper ballots and proxies.
For Remote Participation, the statute contains certain technicalities regarding verification and the ability for all participants to equally be seen and/or heard, and the board resolution implementing this procedure should address these issues.
Q: What is the difference between condominium “association property,” “condominium property,” and “common elements?” (J.Z, via e-mail)
A: “Association property” is, in general and for most practical purposes, real property that is owned the association. In other words, the association holds the title.
“Condominium property” is, in general, real property that is “submitted” to the condominium ownership, along with all improvements thereon.
The “common elements” are those portions of the condominium property that are not included in the units as described in the declaration of condominium. Unlike association property, where the association holds the title, title to common elements is held collectively by the unit owners, as “tenants in common” in “undivided shares.”