The process for the Rio Crossing Homeowners Association Board of Directors elections is directed by a variety of sources:
- Arizona Revised Statutes, primarily ARS
- Rio Crossing CC&Rs
- Rio Crossing Homeowner Association Bylaws, primarily Section 2.1 “Meeting of Members – Annual Meeting” and Section 3.2 “Board of Directors – Appointment and Election”
Normally I recommend reading the applicable rules in the order listed above, but in the case of voting for the board and membership meetings, the Bylaws is the most instructive, so I’ll run through those in most detail first, covering the other documents as applicable and summarizing later.
Bylaws, Article 2 – Meeting of Members
Section 2.1 of the Bylaws states: “An annual meeting of the Members of the Association shall be held at least once each year”. The sentence includes the word “thereafter”, referencing whenever the first meeting was held, many years ago.
Section 2.3 of the Bylaws states: “Written notice of each meeting of the members shall be given by, or at the direction of, the Secretary or person authorized to call the meeting by mailing a copy of each notice, postage prepaid, at least ten (10) but not more than sixty (60) days before such meeting to each Member entitled to vote…”, though ARS 33-1804(B) indicates that the notice can’t be sent more than fifty (50) days in advance. The Bylaws go on to discuss additional requirements of the notice, and some information relating to adjournment of the meeting “to another date, time or place”.
Section 2.4 describes the quorum requirements, and what can happen if less than a quorum is present. Essentially 1/10th of the “Eligible Votes” is required to have a meeting quorum. With 345 lots — each with one vote — one-tenth of that is 35 Eligible Votes. If there is not enough for a quorum, the members present can adjourn the meeting until a quorum can be gathered.
Section 2.5 discusses Proxies, but ARS 33-1812 says “votes […] may not be cast pursuant to a proxy” (emphasis mine). This section does allow for an absentee ballot. In other words, a homeowner who can’t make the meeting can vote for specific candidates, but they cannot designate someone to vote on their behalf. There’s a reason for this: In some communities, a few homeowners would go around to their neighbors asking them to sign a proxy notice, and then show up at a meeting and cast all their votes for the person of their choosing. While this isn’t necessarily a bad thing, you can see where an unscrupulous person who wanted their “best friend” (or themselves!) to be elected could go around collecting enough votes by proxy to win. So absentee ballots are okay… proxies are out!
Section 2.6 discusses the concept of “Record Date”, or you may have heard “Date of Record,” which is often used for voting shares of stock for investors. The importance of this concept is that it determines a cut-off date for who is eligible to vote in this election. Unless the board states a different Record Date, the date of the meeting is the Record Date. While it is probably unlikely that the Record Date will affect anyone’s vote, it is important to note that any votes cast by absentee ballot should be matched against the “owners of record” for the day of the election. In two circumstances, ballots might need to be disregarded:
- A lot owner sent in an absentee ballot, but subsequently sold their lot and notified the association of the transfer prior to the Record Date. The previous lot owner would not be entitled to vote, but the new lot owner’s vote would be valid, if received, whether in person or by absentee.
- If a new lot owner votes either by absentee ballot or in person, and the association has not been given “actual written notice of such change and is provided satisfactory proof thereof”, then the new owner’s vote could not be counted. (This last quote is from the CC&Rs section 6.8 “Voting Procedures”.)
Section 2.7 discusses the “Organization and Conduct of Meeting”, including the need for members to “register with the Secretary (or such person or persons as may be designated by the Secretary) prior to the commencement of the meeting”. Additional information about who can chair the meeting, who can be appointed Recording Secretary, and how the order of business and rules are determined.
Sections 2.8 and 2.9 discuss how the members can also take action without a meeting by using a written ballot process or written consent process. As these aren’t applicable to the election process, I’ll skip them here.
Section 2.10 makes one final point, that “if a quorum is present at a meeting of the Members, the affirmative vote of a majority of the votes represented and voting is the act of the Members.” Basically, if there’s a quorum of 35 people, and 30 people vote on something (with 5 members abstaining), then if 16 people (a majority of 30 votes cast) agree to something, then whatever was approved is now an “act of the Members”.
CC&Rs, Article 6 – The Association; Organization; Membership and Voting Rights”
Section 6.2 of the CC&Rs says (ignoring the points relating to the Declarant Control Period when the developer has certain rights) “the Board shall be elected by the members as provided in the Bylaws”. Most of the details of elections were covered in the above section focused on the Bylaws, but some additional information on the CC&Rs is relevant.
Section 6.7 discusses the “Classes of Members and Voting Rights”. The “Class B” voting class relates only to the Declarant, and are no longer applicable. The “Class A” voting class includes all Owners. One important point is made here: “Each Class A member shall be entitled to one (1) vote for each Lot owned.” If there is more than one owner listed, there is still only one vote per Lot.
Section 6.8 further clarifies that the “vote for each Lot must be cast as a unit, and fractional votes shall not be allowed.” It further indicates that if there are multiple owners and the can’t agree as to how to vote, they will “lose their right to vote on the matter in question”, but that if “any Member casts a vote representing a certain Lot”, that vote will be counted unless an object is made “at the time the vote is cast”.
Section 6.8 also states that if “more than one vote is cast by a Class A Member for a particular Lot, none of the votes shall be counted and all of the votes shall be deemed void.”
Section 6.11 allows the Board, “in accordance with the procedures set forth in the Bylaws” to suspend an owners right to vote if the Owner is behind in Assessments or “other amounts due”. See Bylaws Section 3.12 about the detailed process requirements of suspending the voting rights of a Member, which includes a written “Suspension Notice” to be “given to the Member at least fifteen (15) days prior to the effective date of the suspension”.
There are additional sections of the CC&Rs relating to voting, but not relevant to elections of the Board.
Arizona Revised Statutes
Most of the applicable portions of ARS are covered above.
ARS 33-1812(B) states: “Votes cast by absentee ballot or other form of delivery, including the use of e-mail and fax delivery, are valid for the purpose of establishing a quorum.” For example, if there are 25 Lots represented at the annual meeting and 10 absentee ballots cast, the quorum requirements of 35 are met.
Title 10 “Corporations and Associations” also contains some language relating to elections, but in most cases, the statutes in Title 33 “Property” Chapter 16 “Planned Communities” has the applicable language.