Friday, June 27, 2014
Notice of Final Adverse Decision filed with DPOR, CIC Ombudsman
DESIRED ACTION from Common Interest Community Ombudsman, DPOR, Virginia
A. Direct the Association to annul (void) the 2013 election for the Board of Directors
The Condominium Act § 55-79.77.D, "votes appertaining to any unit may be cast pursuant to a proxy or proxies duly executed by or on behalf of the unit owner, or, in cases where the unit owner is more than one person, by or on behalf of all such persons."
At the 2013 Annual Meeting, homeowners were denied the opportunity to cast a vote for the candidate of their choice because the proxies mailed to homeowners did not specify any candidates for election. The proxies were mailed concurrently with the call for candidates!
There are three situations that in and of themselves render an election null and void. They are:
1- Failure to follow the procedures for giving the first notice of the date of the election shall require the association to conduct a new election;
2- The failure of an association to mail, transmit or personally deliver a copy of a timely delivered information sheet of each eligible candidate to the eligible voters;
3- The failure of the written ballot to indicate the name of each eligible person.
The 2013 election to the Board of Directors violates the Condominium Act.
B. Forbid the Association from exempting homeowners paying monthly assessments
At the 2013 Annual Meeting, two names were drawn and the lucky homeowners were exempted of one month's assessment. We can't find any authorization for the drawing in the Minutes of Board Meetings. Moreover, exempting any homeowner of paying the monthly assessment violates the Virginia Condominium Act. Specifically:
The Condominium Act, § 55-79.83.D Liability for common expenses: “shall be assessed against the condominium units in proportion to the number of votes in the unit owners' association appertaining to each such unit”
§ 55-79.83.F Liability for common expenses: “It remains the policy of this section that neither a unit owned by the declarant nor any other unit may be exempted from assessments made pursuant to this section by reason of the identity of the unit owner thereof.”
§ 55-79.71.E Amendment of condominium instruments: “Except to the extent expressly permitted or expressly required by other provisions of this chapter, … no amendment to the condominium instruments shall change … (iii) the liability for common expenses”
And where does it stop? Exempt one homeowner, two homeowners, … ?
We're reminded of another withdrawal from Association funds without Board authorization — to defend two Board members in a criminal case filed by the Arlington County Attorney.
Exempting any homeowner from paying the monthly assessment violates the Condominium Act and sets a bad precedent — regardless of how the Board describes it.
C. Direct the Association to implement the requirements of § 55-79.75:1
The Board proposes using an "unofficial Facebook Group" administered by four Southampton homeowners to satisfy the requirements of § 55-79.75:1 of the Condominium Act.
§ 55-79.75:1. Distribution of information by members requires:
A. The executive organ shall establish a reasonable, effective, and free method, appropriate to the size and nature of the condominium, for unit owners to communicate among themselves and with the executive organ regarding any matter concerning the unit owners' association.
B. Except as otherwise provided in the condominium instruments, the executive organ shall not require prior approval of the dissemination or content of any material regarding any matter concerning the unit owners' association.
The Association has no rules governing the operation of this "unofficial Facebook Group”. It is up to the group’s administrator to decide who may join the group, what content is permitted, and how long they choose to continue their sponsorship of this group.
The "unofficial Facebook Group” does not give notice of meetings and does not keep minutes of meetings as required by § 55-79.75.
Further, Facebook collects information from comments posted by group members and uses it to target them for advertising. Homeowners should not be subjected to targeted advertising from Facebook in order to take advantage of § 55-79.75:1.
The "unofficial Facebook Group” does not satisfy the requirements of § 55-79.75:1
VIA PRIORITY MAIL #9114901230801364264718
Department of Professional and Occupational Regulation
Office of the Common Interest Community Ombudsman
9960 Mayland Drive, Suite 400
Richmond, VA 23233-1485
A. Direct the Association to annul (void) the 2013 election for the Board of Directors
The Condominium Act § 55-79.77.D, "votes appertaining to any unit may be cast pursuant to a proxy or proxies duly executed by or on behalf of the unit owner, or, in cases where the unit owner is more than one person, by or on behalf of all such persons."
At the 2013 Annual Meeting, homeowners were denied the opportunity to cast a vote for the candidate of their choice because the proxies mailed to homeowners did not specify any candidates for election. The proxies were mailed concurrently with the call for candidates!
There are three situations that in and of themselves render an election null and void. They are:
1- Failure to follow the procedures for giving the first notice of the date of the election shall require the association to conduct a new election;
2- The failure of an association to mail, transmit or personally deliver a copy of a timely delivered information sheet of each eligible candidate to the eligible voters;
3- The failure of the written ballot to indicate the name of each eligible person.
The 2013 election to the Board of Directors violates the Condominium Act.
B. Forbid the Association from exempting homeowners paying monthly assessments
At the 2013 Annual Meeting, two names were drawn and the lucky homeowners were exempted of one month's assessment. We can't find any authorization for the drawing in the Minutes of Board Meetings. Moreover, exempting any homeowner of paying the monthly assessment violates the Virginia Condominium Act. Specifically:
The Condominium Act, § 55-79.83.D Liability for common expenses: “shall be assessed against the condominium units in proportion to the number of votes in the unit owners' association appertaining to each such unit”
§ 55-79.83.F Liability for common expenses: “It remains the policy of this section that neither a unit owned by the declarant nor any other unit may be exempted from assessments made pursuant to this section by reason of the identity of the unit owner thereof.”
§ 55-79.71.E Amendment of condominium instruments: “Except to the extent expressly permitted or expressly required by other provisions of this chapter, … no amendment to the condominium instruments shall change … (iii) the liability for common expenses”
And where does it stop? Exempt one homeowner, two homeowners, … ?
We're reminded of another withdrawal from Association funds without Board authorization — to defend two Board members in a criminal case filed by the Arlington County Attorney.
Exempting any homeowner from paying the monthly assessment violates the Condominium Act and sets a bad precedent — regardless of how the Board describes it.
C. Direct the Association to implement the requirements of § 55-79.75:1
The Board proposes using an "unofficial Facebook Group" administered by four Southampton homeowners to satisfy the requirements of § 55-79.75:1 of the Condominium Act.
§ 55-79.75:1. Distribution of information by members requires:
A. The executive organ shall establish a reasonable, effective, and free method, appropriate to the size and nature of the condominium, for unit owners to communicate among themselves and with the executive organ regarding any matter concerning the unit owners' association.
B. Except as otherwise provided in the condominium instruments, the executive organ shall not require prior approval of the dissemination or content of any material regarding any matter concerning the unit owners' association.
The Association has no rules governing the operation of this "unofficial Facebook Group”. It is up to the group’s administrator to decide who may join the group, what content is permitted, and how long they choose to continue their sponsorship of this group.
The "unofficial Facebook Group” does not give notice of meetings and does not keep minutes of meetings as required by § 55-79.75.
Further, Facebook collects information from comments posted by group members and uses it to target them for advertising. Homeowners should not be subjected to targeted advertising from Facebook in order to take advantage of § 55-79.75:1.
The "unofficial Facebook Group” does not satisfy the requirements of § 55-79.75:1
VIA PRIORITY MAIL #9114901230801364264718
Department of Professional and Occupational Regulation
Office of the Common Interest Community Ombudsman
9960 Mayland Drive, Suite 400
Richmond, VA 23233-1485
Vet could lose home for displaying small US flag
A veteran could lose his home because of a small American flag he has placed in a flower pot in front of his home.
This is the sort of thing that happens when condominium boards are given authority to fine homeowners. There are ways of enforcing the bylaws without it.
For many years, Southampton enforced bylaws by taking away homeowners' parking privileges.
More recently, even without the authority to fine, the Board has unlawfully fined homeowners. Give them more authority, and your home could be at risk.
This is the sort of thing that happens when condominium boards are given authority to fine homeowners. There are ways of enforcing the bylaws without it.
For many years, Southampton enforced bylaws by taking away homeowners' parking privileges.
More recently, even without the authority to fine, the Board has unlawfully fined homeowners. Give them more authority, and your home could be at risk.
Monday, June 23, 2014
Board proposes using Facebook to satisfy a requirement of the Condominium Act
At the June 19 Resolution Conference, the Board proposed using Facebook to satisfy the requirements of the Condominium Act, § 55-79.75:1 — Distribution of information by members.
Specifically, they proposed using an "unofficial Facebook Group" administered by four Southampton homeowners. This seems reasonable provided a committee is assigned this task at a meeting of the Board of Directors. However, the "unofficial Facebook Group" is no longer available.
The Newsletter Committee could be renamed the Communications Committee, and like all committees it would have to comply with § 55-79.75 — Meetings of unit owners' associations and executive organ.
The Newsletter Committee is superfluous. Minutes of meetings, and communications from the management agent, tell homeowners all they need to know.
Specifically, they proposed using an "unofficial Facebook Group" administered by four Southampton homeowners. This seems reasonable provided a committee is assigned this task at a meeting of the Board of Directors. However, the "unofficial Facebook Group" is no longer available.
The Newsletter Committee could be renamed the Communications Committee, and like all committees it would have to comply with § 55-79.75 — Meetings of unit owners' associations and executive organ.
The Newsletter Committee is superfluous. Minutes of meetings, and communications from the management agent, tell homeowners all they need to know.
Sunday, June 22, 2014
No response yet to formal complaint
FORMAL COMPLAINT, March 27, 2014
Failure of Cardinal Management to provide Minutes of Committee Meetings, and to keep proper Minutes of Executive Sessions of the Board of Directors.
1 — Cardinal Management has failed to provide Minutes of Committee Meetings pursuant to a formal request.
On March 7, 2014, pursuant to Association's Resolution No. 13–1, I requested a copy of the minutes of the most recent meeting (i.e. the last meeting held) of the following committees:
1. Architectural Control Committee
2. Building and Grounds Committee
3. Community Standards and Covenants Committee
4. Swimming Pool Committee
5. Financial Committee
6. Newsletter Committee
Having not received a response from Cardinal Management, on March 18, 2014, I requested Cardinal Management to make available for inspection these same records.
The Condominium Act § 55-79.75.B imposes the same requirements for notice to members, meetings, and record keeping on Committees of the Association as it does on meetings of the Board. It requires the Association to make these documents available for inspection "upon five days written notice". Resolution No. 13–1 lists charges for copies.
2 — Cardinal Management has failed to keep proper Minutes of Executive Sessions of the Board of Directors
The minutes of the February 20, 2014 Board meeting state neither the "purpose for the executive session" nor the "vote on such contract, motion or other action”.
The Condominium Act § 55-79.75.C states: “The executive organ or any subcommittee or other committee thereof may convene in executive session to consider personnel matters; consult with legal counsel; discuss and consider contracts, probable or pending litigation and matters involving violations of the condominium instruments or rules and regulations promulgated pursuant thereto for which a unit owner, his family members, tenants, guests or other invitees are responsible; or discuss and consider the personal liability of unit owners to the unit owners' association, upon the affirmative vote in an open meeting to assemble in executive session. The motion shall state specifically the purpose for the executive session. Reference to the motion and the stated purpose for the executive session shall be included in the minutes. The executive organ shall restrict the consideration of matters during such portions of meetings to only those purposes specifically exempted and stated in the motion. No contract, motion or other action adopted, passed or agreed to in executive session shall become effective unless the executive organ or subcommittee or other committee thereof, following the executive session, reconvenes in open meeting and takes a vote on such contract, motion or other action which shall have its substance reasonably identified in the open meeting. The requirements of this section shall not require the disclosure of information in violation of law.”
The purpose for the Executive Session shall be only that which is permitted under § 55-79.75.C. It does not permit an Executive Session to discuss a complaint against the Management Agent or the Board, unless it is to “consult with legal counsel”.
This is a continuing issue and was presented at length during the 2008 Annual Meeting of the Association and by letter on April 22, 2008 to David S. Mercer (Agent, Southampton Condominium) in which I stated “there is no record in the minutes of an “affirmative vote in an open meeting to assemble in executive session” and/or motion stating “specifically the purpose for the executive session” pursuant to § 55-79.75.C.”
DESIRED ACTION
1 — Make available for inspection the records formally requested on March 7, 2014, i.e. the minutes of the most recent Committee meeting held prior to March 7, 2014 (for all six committees).
2 — Confine Executive Sessions to purposes specifically stated in the Condominium Act § 55-79.75.C; in the minutes, state specifically the purpose for the executive session; following the executive session, reconvene in open meeting and take a vote on such contract, motion or other action; reasonably identify its substance in the open meeting.
Failure of Cardinal Management to provide Minutes of Committee Meetings, and to keep proper Minutes of Executive Sessions of the Board of Directors.
1 — Cardinal Management has failed to provide Minutes of Committee Meetings pursuant to a formal request.
On March 7, 2014, pursuant to Association's Resolution No. 13–1, I requested a copy of the minutes of the most recent meeting (i.e. the last meeting held) of the following committees:
1. Architectural Control Committee
2. Building and Grounds Committee
3. Community Standards and Covenants Committee
4. Swimming Pool Committee
5. Financial Committee
6. Newsletter Committee
Having not received a response from Cardinal Management, on March 18, 2014, I requested Cardinal Management to make available for inspection these same records.
The Condominium Act § 55-79.75.B imposes the same requirements for notice to members, meetings, and record keeping on Committees of the Association as it does on meetings of the Board. It requires the Association to make these documents available for inspection "upon five days written notice". Resolution No. 13–1 lists charges for copies.
2 — Cardinal Management has failed to keep proper Minutes of Executive Sessions of the Board of Directors
The minutes of the February 20, 2014 Board meeting state neither the "purpose for the executive session" nor the "vote on such contract, motion or other action”.
The Condominium Act § 55-79.75.C states: “The executive organ or any subcommittee or other committee thereof may convene in executive session to consider personnel matters; consult with legal counsel; discuss and consider contracts, probable or pending litigation and matters involving violations of the condominium instruments or rules and regulations promulgated pursuant thereto for which a unit owner, his family members, tenants, guests or other invitees are responsible; or discuss and consider the personal liability of unit owners to the unit owners' association, upon the affirmative vote in an open meeting to assemble in executive session. The motion shall state specifically the purpose for the executive session. Reference to the motion and the stated purpose for the executive session shall be included in the minutes. The executive organ shall restrict the consideration of matters during such portions of meetings to only those purposes specifically exempted and stated in the motion. No contract, motion or other action adopted, passed or agreed to in executive session shall become effective unless the executive organ or subcommittee or other committee thereof, following the executive session, reconvenes in open meeting and takes a vote on such contract, motion or other action which shall have its substance reasonably identified in the open meeting. The requirements of this section shall not require the disclosure of information in violation of law.”
The purpose for the Executive Session shall be only that which is permitted under § 55-79.75.C. It does not permit an Executive Session to discuss a complaint against the Management Agent or the Board, unless it is to “consult with legal counsel”.
This is a continuing issue and was presented at length during the 2008 Annual Meeting of the Association and by letter on April 22, 2008 to David S. Mercer (Agent, Southampton Condominium) in which I stated “there is no record in the minutes of an “affirmative vote in an open meeting to assemble in executive session” and/or motion stating “specifically the purpose for the executive session” pursuant to § 55-79.75.C.”
DESIRED ACTION
1 — Make available for inspection the records formally requested on March 7, 2014, i.e. the minutes of the most recent Committee meeting held prior to March 7, 2014 (for all six committees).
2 — Confine Executive Sessions to purposes specifically stated in the Condominium Act § 55-79.75.C; in the minutes, state specifically the purpose for the executive session; following the executive session, reconvene in open meeting and take a vote on such contract, motion or other action; reasonably identify its substance in the open meeting.
Drawing for assessment free month violates the Virginia Condominium Act
At the 2013 Annual Meeting, two names were drawn and the lucky homeowners were relieved of one month's assessment. We can't find any authorization for the drawing in the Minutes of Board Meetings. Moreover, relieving any homeowner of paying the monthly assessment violates the Virginia Condominium Act. Specifically:
§ 55-79.83. Liability for common expenses: “shall be assessed against the condominium units in proportion to the number of votes in the unit owners' association appertaining to each such unit”
§ 55-79.71. Amendment of condominium instruments: “Except to the extent expressly permitted or expressly required by other provisions of this chapter, … no amendment to the condominium instruments shall change … (iii) the liability for common expenses”
We're reminded of another withdrawal from Association funds without Board authorization — to defend two Board members in a criminal case filed by the Arlington County Attorney.
On July 1, 2014 we learned that the lucky winners of the 2013 Annual Meeting lottery were Feketekuty in Unit 706A who received $349, and Crouch in Unit 708B who received $392.
§ 55-79.83. Liability for common expenses: “shall be assessed against the condominium units in proportion to the number of votes in the unit owners' association appertaining to each such unit”
§ 55-79.71. Amendment of condominium instruments: “Except to the extent expressly permitted or expressly required by other provisions of this chapter, … no amendment to the condominium instruments shall change … (iii) the liability for common expenses”
We're reminded of another withdrawal from Association funds without Board authorization — to defend two Board members in a criminal case filed by the Arlington County Attorney.
On July 1, 2014 we learned that the lucky winners of the 2013 Annual Meeting lottery were Feketekuty in Unit 706A who received $349, and Crouch in Unit 708B who received $392.
Friday, June 20, 2014
Board votes not to void unlawful election
Last evening, the Board of Directors voted not to void the unlawful election held on October 10, 2013. At the 2013 election, absentee owners and those not attending were denied the opportunity to vote for the candidates of their choosing.
The situation arose because the notice for the 2013 annual meeting at which directors were to be elected was given concurrently (indeed in the same letter) with the call for candidates and the Proxy Form. Obviously, candidates cannot be listed on the Proxy Form if the call for candidates is not issued well before the Proxy Forms are printed.
The Board has recognized this failing in response to a homeowner complaint. The March 7, 2014 response states, "We will be mailing a call for candidates well in advance of this year's annual meeting." Indeed, this is how elections were conducted under better management.
In essence, the Board recognizes that the 2013 election was not properly conducted, but chooses to accept its results anyway.
The proper course of action is to declare the election void. Those "elected" on October 10, 2013 should be considered appointed to their current position on the Board until the next annual meeting.
The situation arose because the notice for the 2013 annual meeting at which directors were to be elected was given concurrently (indeed in the same letter) with the call for candidates and the Proxy Form. Obviously, candidates cannot be listed on the Proxy Form if the call for candidates is not issued well before the Proxy Forms are printed.
The Board has recognized this failing in response to a homeowner complaint. The March 7, 2014 response states, "We will be mailing a call for candidates well in advance of this year's annual meeting." Indeed, this is how elections were conducted under better management.
In essence, the Board recognizes that the 2013 election was not properly conducted, but chooses to accept its results anyway.
The proper course of action is to declare the election void. Those "elected" on October 10, 2013 should be considered appointed to their current position on the Board until the next annual meeting.
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