Lack of quorum nullifies board election

Q: Our condominium association recently held the annual meeting to elect board members. Due to the pandemic, the election was conducted with absentee ballots rather than in-person voting or proxies. The property manager claims too few ballots were returned to constitute a quorum, so the results of the election are void. The manager is also claiming the lack of a quorum means she does not have to let anyone examine the ballots that were returned.

She has further stated there will not be another election until next year, which means this election was effectively skipped. This gives the current board members an extra year in office. Can associations really skip an election like this?

A: There is a lot here, so let me tackle this issue by issue.

The COVID-19 pandemic has presented many challenges to associations. If the board of the association timely adopted appropriate rules, the election could have been conducted by mail-in ballot, in lieu of proxies. There would still have had to be some in-person voting component; however, owners could have been encouraged to vote by mail-in ballot and not in person.

If a quorum of owners was not present at the annual meeting, either in-person or by mail-in ballot, then there would not have been a quorum. If there was no quorum at the annual meeting, the annual meeting would not have proceeded. There would not have been any vote for directors, and no ballot would have been cast. Votes would not have been "void." Votes simply would not have been cast, because there was no actual meeting.

Section 19(a)(8) of the Illinois Condominium Property Act permits owners to examine and copy ballots and proxies related to ballots for all matters voted on by the members of the association during the immediately preceding 12 months, including, but not limited to, the election of members of the board of managers. Here, because there was no quorum at the annual meeting, the annual meeting would not have proceeded. As a result, there would not have been a vote to elect members of the board, and there would not be any "voted" ballots to examine.

The board's obligation was to call and notice up the annual meeting. If a quorum of owners is not present at the annual meeting, the board is generally not required to keep trying to schedule another annual meeting.

All this assumes appropriate rules were adopted to permit the use of mail-in ballots. If appropriate rules were not adopted, there would not have been authority to conduct the annual meeting using mail-in ballots in lieu of proxies.

Q: I am the secretary of a condominium association. Our board adopted rules permitting owners to consent to receive notice by electronic means, and many owners have consented to receive notice in this manner. Typically, notice of board meetings was mailed to board members only and posted at the property. Should I be sending email notice of board meetings to owners?

A: The association should be sending notice of board meetings electronically, such as emails or texts, to owners who have consented to electronic notices. Section 18(a)(9)(D) of the Illinois Condominium Property Act does require that notice of every meeting of the board of managers be given to each unit owner who has provided the association with written authorization to conduct business by acceptable technological means. This is a "bonus" to those owners who have agreed to electronic notices in associations whose governing documents do not otherwise require board meeting notice to be mailed to owners.

• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in the Chicago suburbs. Send questions for the column to him at CondoTalk@ksnlaw.com. The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.