“O BRAVE NEW WORLD that has such people in it!” These words from Shakespeare’s The Tempest aptly describe community associations. For parliamentarians, community associations represent a brave new world of opportunity. Statistics from the Community Association Institute (CAI) reveal that the number of community associations has ballooned from 500 in 1965 to more than 323,000 today.1 Sixty-three million Americans live within community associations. Fifty percent of all new development in metropolitan areas is within community associations. Some 6,000–8,000 new community associations are created each year.
Although a tremendous opportunity for service, community associations are foreign to many parliamentarians. Parliamentarians venturing into this area must become familiar with the language of community associations, complex governing authorities, and some unique problems affecting community associations.
What Are Community Associations?
A more recent development is the enactment of “planned community acts” to govern all community associations. These acts typically exclude condominiums if there is already a condominium act. In addition, such statutes do not govern community associations created before the adoption of the statutes in most cases (unless the community association chooses to be subject to the act).2
Statutes governing community associations often alter the standard procedures regarding quorum, voting, and proper meetings. Statutes often define a quorum as a specifi ed percentage of members that may be as low as 10 percent of unit owners (the Uniform Planned Community Act recommends a quorum of 20 percent for association meetings and 50 percent for board meetings).3 Statutes often provide that once a quorum is present at a meeting, the quorum remains throughout the meeting regardless of how many members leave.4 Some planned community acts provide that if a meeting is unable to convene due to a lack of quorum, any subsequent adjourned meeting will only require a quorum of one-half the original quorum.5
Statutes often include elaborate procedures for proxy voting and cumulative voting. These provisions may govern the community association even if the bylaws and other governing documents are silent as to voting.
Traditional meeting practices can also be modified by statute. Statutes often permit boards of directors to meet by telephone whether or not such language is included in the bylaws. Decisions by any means (including facsimile, e-mail, or calling each board member individually) may be valid by statute if later put in writing and signed by all board members.
Covenants, Conditions, and Restrictions (Declaration)
CCR’s cannot be violated. After all, the CCR’s are a legal and binding contract by anyone who chooses to purchase property within the planned community. Also, unlike statutes which often only provide minimum standards, CCR’s are typically worded in terms of what “must” or “shall” be done. As a result, parliamentarians serving community associations must be aware of the contents of the CCR’s. One community association elected six members of the board of directors based on the language of the bylaws. Association leaders later realized that the CCR’s only provided for five members and had to hold another election.
Owners in community associations are often not aware of the CCR’s control over their lives. CAI surveys suggest that 13 percent of community association owners learn of the restrictions at closing. Even worse, 31 percent of community association owners learn of CCR provisions after moving into their unit. Another study found that 62 percent of those surveyed knew of someone who was unaware of the restrictions when they moved to the premises.
Parliamentarians should also be aware of the difficulty in amending CCR’s. Some CCR’s require a 100 percent vote of all unit owners to amend (an almost impossible requirement). The Uniform Act recommends a floating vote requirement depending on the nature of the amendment. While an amendment that changes the boundaries or uses of a unit requires the unanimous consent of all unit owners, other types of amendment only require the consent of 67 percent of unit owners.7 Approximately one-third of community associations require a three-fourths vote of all unit owners to amend the CCR’s.
Robert’s Rules of Order Newly Revised (11th Edition) states that, “The corporate charter supersedes all its other rules, none of which can legally contain anything in conflict with the charter” (RONR 11th, p. 11). However, the corporate charter in a community association is subsidiary to and cannot conflict with applicable statutes or the CCR’s.
Constitution and/or Bylaws
These numerous governing authorities may conflict and lead to confusion in the context of community associations. For instance, the legal counsel in a recent homeowners’ association election in Florida refused to tally write-in ballots in an annual election, changing the outcome of the election. All major parliamentary authorities permit write-in ballots, and bylaws rarely limit an election solely to nominated candidates. However, the attorney argued that state community association law permitted candidates to nominate themselves, so that all ballots with write-in candidates were disqualified.
Conflict in Community Associations
According to Michael Van Dyk in “Homeowner Associations: Wild West for Parliamentarians” (National Parliamentarian, Third Quarter, 1995), community association board meetings “can be a nightmare for any civilized, law-abiding citizen.” Actual instances are given of cursing matches, fist fights, broken bones, and thrown furniture. Van Dyk describes a condominium owner who had a knife held to her throat. According to the Florida Press Journal (March 6, 1999), a condominium owner allegedly shot and killed another owner at a condominium association meeting over a dispute concerning a garden hose.
The types of issues regulated by community associations can also contribute to disputes. Several lawsuits may be lurking behind any community association decision. One annual meeting I assisted had five lawyers attending in a formal capacity (two representing the association, two representing a dissident member, and one representing the developer). Two video cameras and a court stenographer recorded the entire meeting.
Some authors suggest that ulterior motives may add to friction in the community association context. Van Dyk notes that many community association leaders have the highest motives and altruistic reasons for their service. However, he describes some leaders as “corrupt, arrogant mini-dictators, living off fat kickbacks from big maintenance contracts.” Van Dyk makes reference to a New York investigation in which eighty association managers and presidents were arrested for bribery, kickbacks, and extortion.
While conflict and emotions are not the primary focus of parliamentary procedure, such concerns could impact the conduct of community association meetings. A parliamentarians serving a community association should make every effort to determine in advance the potential impact of personalities and emotions upon an orderly meeting. In such a setting a working knowledge of the dynamics of conflict and techniques for managing conflict may also be desirable.
Jim Slaughter is an attorney, Certified Professional Parliamentarian, Professional Registered Parliamentarian, and past President of the American College of Parliamentary Lawyers. He is author of The Complete Idiot’s Guide to Parliamentary Procedure Fast-Track and lead author of Notes and Comments on Robert’s Rules, Fourth Edition.
Updated and reprinted with permission from “Community Associations and the Parliamentarian,” National Parliamentarian, First Quarter 2000.
Charts and articles are intended to provide general information on parliamentary procedure and are not legal advice or a legal opinion.