Meeting minutes — what to include, what to exclude

Editor’s note: David Bendoff is taking some time off. This column originally appeared in 2011.

Meeting minutes are one of the most important of all corporate documents of a homeowners association. Nonetheless, more often than not minutes fail to properly or accurately record Board action, or are vague, or include extraneous statements that are a detriment to the association. Unfortunately, these issues often come to light only after copies of minutes have been requested in the discovery process of pending litigation. It’s too late at that point to correct flaws if there is a problem with the minutes, so it’s extremely important for a board to understand the proper content of minutes.

Minutes should describe the meeting (e.g., “Minutes of April 1, 2011 Regular Meeting of the Board of Managers of ABC Condominium”), identify which board members are present/absent, identify management representatives and/or any guest speakers that are present, and indicate that a quorum of the board is present.

Minutes should reflect the time that the meeting is called to order and when it is adjourned. If a board member arrives late, or leaves early, the minutes should note this and the specific time. It is also helpful to organize the minutes to mirror the meeting agenda. Once the meeting minutes have been approved, they should be signed and dated by the secretary and indicate that they have been approved. Approved minutes should be kept in an organized set of minute books (and not simply tossed in some file or drawer), where they can be located when needed.

Minutes need to accurately record matters considered and action taken by the board on agenda items and on matters added to the agenda. That is, the minutes need to identify, in appropriate detail, the motions made by the board and reflect the vote taken. If the board is voting on an asphalt pavement seal-coating contract, do not state “The board discussed seal-coating and approved the contract.” Rather, a proper motion, and recording of the vote, would be “Motion to approve the proposed asphalt pavement seal-coating contract with XYZ Paving, dated Oct. 31, 2011, in an amount not to exceed $35,000.00, made by John Smith, seconded by Jane Jones. Vote Taken: 4 In Favor, 1 Opposed, Motion Passes.” The point is that someone should be able to pick up the minutes in the future and be able to understand exactly what action was taken by the board.

As important as what should be in the minutes is what should not be in the minutes. I have seen pages and pages of minutes trying to capture or summarize every word spoken at a meting. This is inappropriate, as the minutes are not supposed to be a transcript of a meeting. When it comes to minutes, to borrow a phrase from Ludwig Mies van der Rohe, “Less is more!” That said, I am not suggesting that the board keep owners uninformed of association matters. That is the role of a newsletter, not of the official corporate record of the minutes. If the board is so inclined, the minutes could refer generally to a “unit owner forum” or a topic discussed by the board, without further detail as to the substance of the comments/discussion.

Do not include the editorial comments or opinions of board members or owners. Minutes that are too extensive or record such statements may include incorrect information from unqualified persons that could be used against the association in litigation. It is generally not a good idea to include the comments of owners like “As you know, the roof is leaking and needs to be replaced,” or “Mrs. Kravitz tripped over the crack in the sidewalk for the second time in a year. When is the sidewalk going to be repaired?” These statements make it easy for someone to allege that the board had notice of a condition (even if the statements were not accurate) that later causes damage or injury.

Minutes should not recite, or even summarize, the privileged advice or strategy of association counsel; to do so serves to waive the privilege (not a good idea). If the minutes include privileged information, the association risks having to disclose, to an opposing party, all communication between the association and counsel concerning the subject matter. That’s a potential disaster.

With a little thought, board meeting minutes will create an accurate corporate record of board action without resembling a novel or exposing the association to liability.

• 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.