Special assessments for capital expenditures

by James Licciardi
(Meraux, La. USA)

Visitor Question: Our master deed states that a majority of owners must be present to vote on special assessments. Proxy voting is not in our master deed and a majority of members present was not reached. The board then had proxy votes presented to make a majority. Is this allowed, not being in our master deed?

Editors Reply: James, this is a question we cannot answer with certainty, but we will give you some ideas on how to think about this.

On the surface, it sounds like this would not be allowed.

But then, the master deed, or other documents that have been adopted as allowed by the master deed, may give the HOA members, board members, or an executive committee of the board the leeway to make rules of all kinds, including voting rules. Sometimes these powers are extremely broad. If this is the case in your development, then this voting method may have been quite appropriate.

If you disagree with this assessment, begin by asking officers of the association how they justify this voting method. Then of course if they have no reasonable answer, you have to decide whether you want to mount a legal challenge, refuse to pay, or take another action.

Unless the situation to be addressed by the special assessment is an emergency health or safety related issue (such as avoiding raw sewerage or addressing an outright cave-in of your entrance road, for example), ask the HOA officers to conduct another meeting to hold a proper vote. Since summer is upon us in the Northern Hemisphere, this can be a picnic or party to give people a reason to come out. With good planning, proper health precautions can be taken, even during this pandemic.

Just for the benefit of all readers, we want to observe that all homeowners associations should consider carefully their voting methods. For example, are proxy votes, electronic votes, telephone votes, and advance voting acceptable? Who determines which voting methods will be allowed for HOA matters?

Sometimes an HOA will need to consult its attorney to decide on appropriate voting rules and how those should be adopted. Since there is little or no uniformity of covenants and HOA regulations, all of this has to be determined on a case by case basis. Make the HOA rules as clear as possible.

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