Special Meeting No Absentee Ballots
The HOA that I am a member of is seeking approval of a special assessment and wrote the following in an email to all owners.
“Q: How is a special assessment approved?
A: The community will be sent notice of the proposed amount per unit, along with supporting documentation. A meeting will be called for voting on the special assessment. In order to pass the special assessment, CV’s rules require that it be approved by a “majority vote of the members at the meeting” ( in-person voting, no absentee ballots).”
The last part prohibiting absentee ballots is unusual since A.R.S. 33-1250(C) states “The association shall provide for votes to be cast in person and by absentee ballot and, in addition, the association may provide for voting by some other form of delivery, including the use of e-mail and fax delivery.”
It seems odd/unusual that the Board would suggest having this only be an in person vote and no absentee ballot. Does A.R.S. 33-1250(C) apply only to regular and annual meetings vs special meetings, or does it apply to all meetings where there is a vote of the membership?
If the Board conducts this vote for/against a special assessment via a special meeting where only in person voting is allowed, would a homeowner be able to successfully challenge the results of this election with a complaint to the Arizona Department of Real Estate?
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What your association is attempting is totally illegal. You are absolutely correct in your read of the statute. There is an “and” not an or in the law and that will supersede whatever your association has in its bylaws. As a direct violation of law any outcome from that ballot measure can and will be nullified by either a superior court or administrative law judge.
My recommendation to you is to write a letter to the board and the management company informing them that what they are attempting is in violation of Arizona law and if they continue to attempt to conduct this ballot measure they will be challenged by a petition to the Dept, of Real Estate and they will have the measure invalidated and they will be liable for the petition fee and subject to a fine at the discretion of the ALJ. This is important that you inform the association before the meeting that they are violating the law. If they then go ahead with the election it is in total disregard of the law.
The reason the association is doing it is they believe that if they allow absentee ballots that more people will vote and they will most probably get the majority needed to pass the measure. They will tell you the story that it is based on the cost of sending absentee ballots to everyone. Don’t believe this for a minute that is nothing but crap. If they were truly concerned about the cost they should have planned better and provided for the cost of whatever they are trying to do in contributions to the reserve fund over several years instead of trying to sneak in a special assessment.