Condo boards navigate quorum rules and bylaw adoption
Q. Our condominium board has seven volunteer owners right now with two vacancies. Our declaration and bylaws provide for nine board members. However, the original developer declaration and bylaws specifically states that a “quorum of 6 board members is required in order for the Board to conduct a board meeting.” Is this quorum requirement of “6” board members proper regardless of the number of owners serving on the board?
A. No. Any board meeting quorum requirement stated in a declaration and bylaws should be reflected in the form of a percentage — not a specific number. The reason is that condominium boards often have a difficult time filling all the board positions often resulting in vacancies. As a result, a quorum requirement stated in the form of a specific number of board members (whether “3” or “5” or “6” or any specific numerical symbol) simply cannot apply if there is less than a full board and/or may be overly-burdensome even if there is a full board. This is why the Illinois Condominium Property Act specifically states that a quorum of the board necessary to conduct a board meeting is a simple majority of the current sitting board members, not a specific number.
Q. Our homeowners association was created by the developer with only a declaration of covenants. The developer did not provide or adopt bylaws specifically addressing the governance of the association. How can our board of directors adopt an initial set of bylaws for the association now?
A. It’s not unusual for a developer to fail to adopt a proper set of bylaws for an HOA. Bylaws are different from the declaration in that bylaws define board administration requirements like structure and elections, meeting procedures, voting rights, officer duties, quorum and notice requirements.
If there are no HOA bylaws, the declaration of covenants may contain provisions that allow the board to adopt bylaws. If there is no specific provision in the declaration, Section 105/106.05 of the Illinois Not-For-Profit Corporation Act authorizes the board to adopt bylaws: “The initial bylaws of a corporation may be adopted by its board of directors. Thereafter, the bylaws may be made, altered, amended or repealed either by the members entitled to vote, or by the board of directors, unless the bylaws otherwise provide.” The board should seek advice and counsel from the association’s attorneys to draft the initial set of bylaws
Q. Our condominium association is having a special meeting of owners to vote on the removal of several board members and also on an amendment to the declaration. Proxies have been sent to all owners. If the special meeting of the owners is continued for whatever reason, are the signed proxies still valid and usable at the continued meeting and, if so, how long are they still usable to vote on the removal and amendment issue?
A. Typically, a proper proxy form will specifically state that it is good for any continuance of the special meeting of owners to vote on removal and/or the amendment. Under the Illinois Condominium Property Act, proxies cannot be effective for more than 11 months unless the proxy or bylaws specifically allow for longer. Therefore, if the association has to continue the special meeting of owners to vote on either the removal issue or the amendment issue, the original proxies signed for the first meeting can be used to vote at a continued meeting for the specific issues stated within the proxy. Accordingly, the board does not have to send out new proxy forms simply because the special meeting of owners was continued.
• Matthew Moodhe 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.